Volume 67 — Pennsylvania Superior Court Reports

<p>Appeal, No. 8, Oct. T., 1917, by defendant, from judgment of Q. S. Schuylkill Co., Jan. T., 1916, No. 187, on verdict of guilty in case of Commonwealth v. Clinton E. Sitler.</p> <p>Indictment against tax collectors for embezzlement. Before Moser, J., specially presiding.</p> <p>Defendant presented these points:</p> <p>1. That the Commonwealth has not shown that the time has arrived when taxes alleged to have been collected by the defendant should have been paid over.</p> <p>Answer. That is affirmed as a legal proposition; but the question, as we view it in this case, that is, the issue that is for your determination, is, whether or not he collected taxes and converted the money to his own use, whether he appropriated it. You have heard counsel discuss the various acts of assembly which provide that a tax collector must make a written return monthly, and the Act of 1891, which also provides that a monthly return must be made. These acts of assembly were passed to compel, or to urge the tax collectors — really to compel them, to make prompt return, so that municipalities would not be hampered by the tax collector holding the money and deferring his settlements to suit- his convenience, and sometimes greatly inconvenience the school districts, boroughs, and other municipalities to whom the taxes are dne. So that the Act of 1891 and the Act of 1897 were passed to compel monthly settlements, or monthly returns, and the Act of 1897 imposes a penalty for a failure to comply therewith, that is, a failure to make these returns by a tax collector. This bill of indictment does not charge that the defendant failed to return, nor does it charge that he failed to pay over. The charge is that he took and converted and applied the moneys to his own use. The defense, in answer to the specific charge in the bill, says, “Why, we have not bad a settlement. No .demand has been made by the proper officials; no proceedings have been had under the various acts of assembly providing for written returns and settlements by tax collectors. Therefore, there can be no conviction.” We say to you that in this case, if you find that the moneys were collected by this defendant, and that he has retained them and has converted them to his own use, there should be a conviction; and in considering that matter, you will take into consideration the length of time that he has withheld the money. For instance, suppose you should find from the testimony that he did not advance any money and that he has no right to hold these moneys to reimburse himself, moneys that he collected subsequent to the dates of the collection of the moneys testified to by witnesses called on the part of the Commonwealth; suppose you should resolve those questions against the defendant and find that he collected this money and that he should have turned it over and that he did not turn it over, well, then, the question that would naturally suggest itself to your minds is, did he convert it to his own use? In passing upon that question you will take into consideration the length of time that he has retained it. While these acts provide that he shall make written returns and settlements monthly, there may not be a violation if a man does not make his return on the very day. But if you find that he has retained this money an unreasonable time, you have a right to take that into consideration when passing upon the question as to whether or not he converted and applied it to his own use. (1)</p> <p>2. The Commonwealth has not shown that the time has arrived when the defendant should pay over taxes which he collected, and that he has been legally required to pay by an officer who is by law vested with authority to demand the same.</p> <p>Answer. That point is refused as drawn, so far as it applies to this case or is material to a proper deliverance of the questions of fact by the jury. (2)</p> <p>3. The Commonwealth has not shown that the defendant is legally liable and required to pay by any officer or persons upon whom the law has imposed that duty or conferred that authority.</p> <p>Answer. That is practically the same question, and we say that under our view of this case it is not applicable. The Commonwealth does not contend that any particular officer demanded payment from the tax collector or advised him that he was required to pay. The law requires him to turn over the money that he collects as tax collector; it is his business to turn it over; especially was it his business to turn it over within a reasonable time. It is his duty to desire, at least, a settlement, as well as the county’s. He ought to be just as- anxious to have a settlement of his accounts as the other county officials. He is a public officer and elected by the public to perform certain duties, to collect the money and pay it over, not to collect the money and then sit still until he is compelled to pay it over, or until some particular specific demand is made of him. (3)</p> <p>4. The Commonwealth has not shown that it has been determined by the county controller that there is an amount due from the defendant, and that the county com troller demanded the defendant to pay such amount to the treasurer.</p> <p>Answer. We say to you, gentlemen of the jury, that there is no contention that the controller determined what amount was due the county here. The Commonwealth’s complaint is that subsequent to November, 1913, and November, 1914, the defendant collected taxes on these two duplicates, and'that he has made no return whatever therefor, has not paid it over, and has converted it to his own use. That is a question for you to determine. In that view of the case, the point submitted is really immaterial. (4)</p> <p>5. If the defendant did not make monthly returns in writing to the county commissioners, showing the amounts collected by him during the preceding month and the amount of uncollected taxes upon his duplicate for 1913 and 1911, or exhibiting the duplicates showing the uncollected taxes, he cannot be convicted, because he is not thus charged in the indictment.</p> <p>Answer: That is refused. (5)</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned, among others, were (1-5) above instructions quoting them.</p>

<p>Appeal, No. 87, April T., 1917, by defendant, from order of C. P. Greene Co., June T., 1914, No. 107, directing an interpleader in case of A. F. Silveus v. D. L. Sayers, alias David L. Sayers with clause of scire facias to James E. Sayers, executor of the last will and testament of Ezra M. Sayers, deceased, Garnishee, and Henry C. Sayers, Intervenor.</p> <p>Rule for interpleader.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was making absolute rule for inter-pleader.</p>

<p>Appeal, No. 118, Oct. T., 1916, by plaintiff, from order of Municipal Court of Philadelphia Co., June T., 1914, No. 486, opening judgment in case of C. William Spiess, trading as Lewis A. Taulane, agent, v. Katharine Mooney & David Hyde, individually, and trading as Madam Katharine Ladies’ Tailoring Company.</p> <p>Kule to open judgment.</p> <p>The depositions in support of the rule show that suit was begun in assumpsit for rent at a time when Katharine Mooney was away from her home, that-papers were served on David Hyde, who was illiterate, and did not understand them, that on Mrs. Mooney’s return, he gave her the papers, and then defendants discovered for the first time that judgment had been entered against them, that plaintiff had interfered with defendant’s business of tailoring on the demised premises, that after the business was ruined defendants tendered an amount proper for the rent due, with notice of intent to remove from the premises.</p> <p>Error assigned was order opening judgment.</p>

<p>Appeal, No. 328, Oct. T., 1916, by defendant, from judgment of Q. S. Philadelphia Co., Jan. T., 1916, No. 560, on verdict of guilty in case of Commonwealth v. H. Matthias Puder.</p> <p>Indictment for unlawfully lending money without first having complied with the provisions of Sec. 1 of the Act of June 17, 1915, P. L. 1012.</p> <p>The case turned upon the constitutionality of the Act of June 17, 1915, P. L. 1012.</p> <p>Verdict of guilty upon which the defendant was sen-fenced to pay a fine of $100 to the Commonwealth and the costs of the prosecution.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Constitutional law — Special legislation — Title of act — Money lenders — Act of June 17,1915, P. L. 1012.</p> <p>The Act of June 17,1915, P. L. 1012, is constitutional.</p>

<p>Road law — Damages—Opening street — Damages for construction of sewer — Municipalities—Constitutional law.</p> <p>Where a city files a petition for the appointment of viewers to assess damages for the taking of private property for a street, and while such petition is pending files a second petition for the appointment of viewers to assess damages incident to the construction of a sewer in the same street, and proceedings on the first petition result in a judgment for the property owner which is paid, and proceedings on the second petition result in a judgment against the property owner, which is affirmed on appeal, the property owner cannot thereafter maintain an. action of trespass against the city for damages claimed to have accrued between the date of the entry upon the land to construct the sewer, arid the date of the payment of the damages resulting from the opening of the street.</p> <p>In such a- case the construction of the sewer imposed no new servitude on the land already appropriated for the street. The fact that the damages were not actually paid at the time of the appropriation is immaterial, inasmuch as the taxing power of the city furnished to the landowner the security contemplated by the constitutional requirement that no entry shall be made until the damages are paid or secured.</p>

<p>Appeal, No. 239, Oct. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dee. T., 1915, No. 773, on verdict for plaintiff in case of Joseph Mish v. Lehigh Valley Coal Company.</p> <p>Trespass -to recover damages for personal injuries. Before Wessel, J.</p> <p>At the trial it appeared that plaintiff was injured on May 14, 1915, by the falling in of a roof of a gangway in which he had been directed to work by the mine foreman. It appeared that plaintiff was not a miner, but was employed in loading coal wagons in places free from danger. He had no knowledge of the danger attending work in the place where he was injured, and had received no instructions from any one as to such danger. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,430. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 250, Oct. T., 1916, by defendant, from order of G. P. No. 2, Philadelphia Co., June T., 1916, No. 367, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John Zimmerman v. Henry J. Dolinsky. Assumpsit for rent.

<p>Appeal, No. 76, Oct. T., 1916, by Cyrus Eaub, from decree of O. C. Bucks Co., sustaining and dismissing exceptions to auditor’s report in Estate of Reuben Raub, deceased.</p> <p>Exceptions to report of Wárren S. Long, Esq., auditor.</p> <p>Before the auditor, Cyrus Eaub, the son of Eeuben Eaub, claimed $120 for the board of a horse. He also made a claim for the board and lodging of Eeuben Eaub and his wife for twenty-six weeks. The auditor allowed the claim for the board of the horse, but disallowed the claim for the board and lodging of the decedent and his wife. The court overruled the auditor as to the first claim, but sustained him as to the second. ' Exceptions to the auditor’s second report, which conformed to the opinion of the Orphans’ Court, were dismissed. The evidence is summarized in the opinion of the Superior Court.</p> <p>Errors assigned were, among others, as follows:</p> <p>2. The court erred in overruling the exception of the claimant to the disallowance of the auditor of his claims for the board of the decedent and wife.</p> <p>3. The court erred in sustaining the exception to the allowance by the auditor of one hundred and twenty dollars for the board of the horse.</p> <p>4. The court erred in dismissing the exceptions.</p>

Appeal, No. 101, Oct. T., 1916, by defendant, from judgment of C. P. Chester Co., Jan. T., 1916, No. 113, on verdict for plaintiff in case of Charles H. Kunkle v. Samuel H. Thompson. Trespass to recover damages for personal injuries and injuries to an automobile.

<p>Appeal, No. 217, Oct. T., 1916, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1916, No. 4, for want of a sufficient statement in case of United States Casualty Company v. Charles E. Mather, Victor C. Mather, Gilbert Mather and Joseph O’Brien, trading as Mather & Company.</p> <p>Assumpsit to recover premiums.</p> <p>Rule for judgment for want of a sufficient statement.</p> <p>From the record it appeared that the defendants’ agent in San Francisco, Charles H. Williamson, had collected certain premiums which should have been turned over to the plaintiff, but that he had failed to do so. The correspondence annexed to the statement showed that there had been differences between plaintiff and defendants as to these premiums. On May 10, 1915, plaintiff wrote to defendants that at that time there was due the sum of $223.43 and requested payment. On May 11, 1915, the defendants replied, enclosing check for $223.43. The writer of this reply made in his letter the following statement:</p> <p>“I am extremely anxious to get rid of this entire situation. I note you confine your claim now to the sum of $223.43. .Personally I know nothing of the details of these items and in our correspondence with the George E. Billings Co. they say we do not owe them, but be this as it may, I am willing to pay this sum to wind up the situation.</p> <p>“In paying this amount we do it with the understanding that it entirely closes up all the claims of every kind and character you have against this firm by reason of or growing out of the appointment of Mr. Chas. H. .Williamson as your agent in San Francisco.”</p> <p>On May 12, 1915, Plaintiff acknowledged the receipt of the check for $223.43 “in payment of the items listed in the statements which I forwarded you under the date of the 10th instant.”</p> <p>The present suit was brought to recover the sum of $209.28 covering certain other premiums alleged to be due.</p> <p>The court in an opinion by Gilpin, J., made absolute the defendants rule for judgment.</p> <p>Error assigned was-the judgment of the court.</p>

Appeal, No. 69, Oct. T., 1916, by defendant, from judgment of O. P. No. 4, Philadelphia Co., Sept. T., 1914, No. 3363, on verdict for plain: tiff in case of Theodore P. Everett, trading as M. G. & A. P. Wyckoff Company v. Edmund E. Delp and August F. Gruber, copartners, trading as E. E. Delp Grain Company. Assumpsit for breach of a contract to sell and deliver corn.

Appeal, No. 208, Oct. T., 1916, by defendant, from judgment of Municipal Court Philadelphia Co., April T., 1916, No. 9, on verdict for plaintiff in' case of. Basile Console, Executor of the Estate of Angelica Console, v. Prudential Insurance Company of America. Assumpsit on two policies of life insurance. Before Knowles, J. At the trial it appeared that the two policies were dated May 15, 1915, and August 2, 1915, respectively.

Appeal, No. 24, Oct. T., 1916, by defendant, from judgment of O. P. Lancaster Co., Jan. T., 1912, No. 283, on verdict for plaintiff in case of A. J. Steinman, Administrator of Susan S. Steinman, Deceased, v. Lewis Feldser. Feigned issue to determine the validity of a judgment.

Appeal, No. 281, Oct. T., 1916, by Charles T. Maxwell, from decree of O. C. Philadelphia Co., July T., 1908, No. 368, dismissing exceptions to adjudication in Estate of Elizabeth Maxwell, deceased. Exceptions to adjudication. From the record it appeared that testatrix died July 8, 1908, leaving a will, duly probated, the second clause of which is quoted in the opinion of the Superior Court.

<p>Appeal, No. 329, Oct. T., 1916, by Charles T. Maxwell, from decree of O. C. Philadelphia Co., July T., 1908, No. 254, dismissing exceptions to adjudication in Estate of Elizabeth Maxwell, deceased.</p>

Appeal, No. 103, Oct. T., 1916, by plaintiff, from judgment of O. P. Northampton Co., April T., 1914, No. 94, on verdict for defendant in case of Ralph Harding, trading and doing business as Harding Brothers v. Pen Argyl National Bank. Assumpsit to recover a balance alleged to be due on a bank account opened under the name of “Harding Brothers.” Before McKeen, J. The firm of Harding Brothers consisted of Ralph Harding, the plaintiff, and Prank Harding.

Appeal, No. 247, Oct. T., 1916, by plaintiff, from judgment of O. P. No. 2, Philadelphia Co., March T., 1916, No. 1028, for defendant on feigned issue in case of Margaret Birnie v. Artisan’s Order of Mutual Protection, to use of P. P. Gallagher. Assumpsit for death benefits. Rule to show cause why a fund paid into court should not be paid to Margaret Birnie.

Appeal, No. 356, Oct. T., 1916, by plaintiff, from order of O. P. No. 3, Philadelphia Co., Dec. T., 1914, No. 1162, refusing to take off nonsuit in case of Joseph J. Kane, trading as Kane & Company, v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries.

Appeal, No. 140, Oct. T., 1916, by plaintiff, from order of C. P. No. 5, Philadelphia Co., Dec. T., 1915, No. 2755, making absolute rule to open judgment in case of T. Reece Howard v. H. Boverman and I. Slubin. Rule to open judgment. Error assigned was order making absolute rule to open judgment.

Appeal, No. 341, Oct; T., 1916, by plaintiff, from order of C. P. No. 1, Philadelphia Go., June T., 1916, No. 3011, discharging rule for judgment in case of Mastbaum Brothers & Pleisher v. Richard Stuart and Adaline Stuart. Assumpsit for commissions upon an agreement to sell real estate. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 351, Oct. T., 1916, by plaintiff, from judgment of Municipal Court Philadelphia Co., Jan. T., 1916, No. 332, for defendant n. o. v. in case of Marion E. Rawlings v. Erwin Motor & Machine Company.</p> <p>Trespass to recover damages for personal injuries and for injuries to an automobile. Before Gilpin, J.</p> <p>At the trial it appeared that plaintiff was injured on November 8,1915, in a collision between her Ford automobile which she was driving and defendant’s motor truck. The accident happened at the intersection of Eighteenth and Diamond streets in the City of Philadelphia. The evidence is summarized in the opinion of the Superior Court.</p> <p>The jury returned a verdict for plaintiff for $89,89. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

Appeal, No. 306, Oct. T., 1916, by plaintiffs, from judgment of Municipal Court, Philadelphia Co., May T., 1916, No. 203, for plaintiff, on case tided by the court without a jury in suit of Dennis A. Daly, Frederick Wielandt- and Charles Wade, trading as Daly Wielandt. & Co. v. Hugh Copeland, Jr., and Samuel W. Copeland, trading as Hugh Copeland & Sons. Assumpsit for work done. Before Bonniwell, J., without a jury.

<p>Appeal, No. 337, Oct. T., 1916, by plaintiff, from order of Public Service Commission, Application Docket No. 321,1914, approving plans for the abolition of grade crossings, In re Application of Delaware, Lackawanna & Western Railroad Company.</p> <p>Application to approve grade crossings.</p> <p>After the order of the Public Service Commission approving the plans had been filed, Great Bend Township filed a petition for appeal which averred as follows:</p> <p>1. On November 5, 1914, application was made to the Public Service Commission by the Delaware, Lackawanna & Western Railroad for leave to relocate the tracks of its main line in Great Bend Township, Susquehanna County, Pennsylvania, so as to abolish certain grade crossings over the Cochecton and Great Bend turnpike; and on hearing before the commission a report was made April 9, 1915, granting the application and in that connection ordering that the railroad company should perpetually keep and maintain in repair that portion of the turnpike between the crossings which were abolished,. or make provision with the township authorities therefor.</p> <p>2. On May, 1915, application was made to the said commission for a rehearing and modification of the said order on the ground that the commission had no authority to make it and that it was unreasonable; in the course of the hearing on which application it was agreed by counsel that in commutation of the perpetual repair of the road the railroad would pay and the township would accept the sum of $1,350, the immediate repair of two sluices being also provided for. But the commission having considered the same on August 24, 1916, the former order was modified and the provision requiring the railroad to keep in repair the part of the turnpike mentioned was stricken out and damages refused to the township.</p> <p>3. Prior to the relocation of the turnpike road between the grade crossings abolished, the turnpike had been adopted and made a State road, and was kept and maintained by the State Highway Department, and the part named was not vacated by the commission, but on the contrary was required to be kept up and maintained by the township for the convenience of the public and the persons living on that part of the said highway, which duty was thereupon imposed on the township without compensation being made therefor.</p> <p>The township thereupon appeals and assigns for error.</p> <p>1. The Public Service Commission erred in modifying the order of April 9, 1915, and relieving the railroad from keeping in repair or making provision with the township authorities for payment for the keeping in repair of that part of the township in question.</p> <p>2. The Public Service Commission erred in imposing on Great Bend Township the duty of maintaining that part of the turnpike road theretofore maintained by the State Highway Department without making provision for compensation to said township.</p> <p>3. The Public Service Commission erred in not directing the said railroad to- keep the said road in repair.</p> <p>i. The Public Service Commission erred in not authorizing the railroad to pay to the township authorities the sum of $1,350 as compensation for keeping the said road in repair as agreed on by the parties.</p> <p>Error assigned was the final order of the Public Service Commission.</p>

<p>Appeal, No. 16, March T., 1917, by defendant, from judgment of O. P. Columbia Co., May T., 1915, No. 40, on verdict for plaintiff in case of Millard P. Osbourn v. Magee Carpet Company.</p> <p>Assumpsit for a balance alleged to be due under an oral contract of employment. Before Evans, P. J.</p> <p>At the trial the plaintiff testified that he was a consulting engineer and that he had by a parol contract agreed to make an investigation and examination of the plant of the defendant, and to make a report as to the propriety of certain installations therein. For this he was to receive $500. He further testified that for further services, such as preparing plans and specifications for the carrying out of his suggestions, he was to receive additional compensation. The defendant claimed that the plaintiff was not only to investigate and report, but also to furnish plans and specifications, and that he had failed to do the latter. After plaintiff had made his report the defendant sent him a check for $100, the circumstances of which payment are detailed in the opinion of the Superior Court.</p> <p>The defendant presented the following points:</p> <p>3. The plaintiff having received from the defendant its check for $100, dated November 25, 1914, marked as per letter and statement of even date, together with the letter and statement so referred to, and the letter and statement, so referred to by the check, having recited the conditions and terms upon which said check was tendered, the plaintiff was bound by the conditions and terms of the tender so made, and could not accept and use the check except upon the conditions and terms subject to which it was so tendered; and therefore, the plaintiff having accepted and used the said check, the verdict of the jury should be for the defendant.</p> <p>Answer: Refused. (1)</p> <p>4. The plaintiff having received from the defendant its check for $100 dated Nov. 25, 1914, subject to the conditions and terms of the letter and statement accompanying said check and referred to by said check, and having accepted and used the check so received, is bound by the conditions and terms under which said check was tendered to him; and the plaintiff not having complied with the conditions and terms so stated and referred to in the said letter and statement, the verdict of the jury should be for the defendant.</p> <p>Answer: Refused. (2)</p> <p>5. Under all the evidence the verdict of the jury should be for the defendant.</p> <p>Answer: Refused. (3)</p> <p>The court charged in part as follows:</p> <p>[“There is perhaps but one main question in this case. Did the undertaking between the parties provide that the plaintiff should prepare plans and specifications as claimed by the defendant, or was the undertaking to make investigational work without plans and specifications.</p> <p>“If you find from the evidence that the plaintiff’s contention is the correct one, viz: that he was not to prepare plans and specifications, but only to make investigational work, then and in that event you would be warranted in returning a verdict'in favor of the plaintiff for the full'amount claimed, viz: Four hundred ($400) dollars with interest thereon at six per cent., from the first day of December, 1914. But on the other hand if you should find from the evidence that the defendant’s contention or theory is correct, viz: that the plaintiff was to prepare plans and specifications for the eleétrical plant, in that event, if you so find, you would be warranted in returning a verdict in favor of the defendant”] (5)</p> <p>Yerdict and judgment for plaintiff for $429.06. Defendant appealed.</p> <p>Errors assigned, among others, were (1, 2, 3, 5) above instructions quoting them.</p>

Appeal, No. 10, March T., 1917, by J. C. Benfield, from order of Q. S. Montour Co., June T., 1914, No. 1, dismissing exceptions to and confirming report of viewers In re Eoad in Limestone Township. Petition to vacate public road. Prom the record it appeared that the viewers reported not only in favor of vacating the road, but also in favor of relocating it.

Appeal, No. 48, March T., 1917, by defendant, from order of C. P. Luzerne Go., Oct. T., 1916, No. 1676, making absolute rule for judgment for want of a sufficient affidavit of defense in case of… Held: in Hardy v. Lancashire Fire Insurance Company, 44 3ST. E. 209, that where the owner procured subsequent other insurance without knowledge of the plaintiff mortgagee, the latter could not be affected.

Appeal, No. 59, March T., 1917, by plaintiffs, from judgment of C. P. Luzerne Co., June T., 1910, No. 37, on verdict for defendant in case of John Zillic et al. v. Edward Minnich et al. Assumpsit to recover a share of royalties on coal. Before Strauss, J. Prom the record it appeared that plaintiffs claimed to recover twenty per cent, of the royalties received by defendant from certain coal lands. The claim was based upon a written agreement under seal.

Appeal, No. 17, March T., 1917, by defendant, from order of 0. P. Lackawanna Co., March T., 1915, No. 786, discharging rule to open judgment in case of Grace F. Scranton v. George Highfleld. Buie to open judgment. The court filed the following opinion: Defendant was sued on his promissory note and the cause went to judgment against him by default for want .of an affidavit of defense.

<p>Appeal, No. 32, March T., 1917, by Borough of Old Forge, from order of C. P. Lackawanna Co., No. 1316, M. L. D., year 1914, striking of Municipal lien in case of Borough of Old Forge v. Foley Estate.</p> <p>Rule to strike off municipal lien. Before Edwards, P. J.</p> <p>The lieñ filed was on a printed blank intended to be folded twice. The concluding paragraph of the lien and the endorsement were as follows:</p> <p>“And the Borough of Old Forge files this claim and lien under and by virtue of the acts of assembly of the said Commonwealth of Pennsylvania relating thereto and the ordinances of the said Borough of Old Forge as aforesaid.</p> <p>“Borough of Old Forge,</p> <p>By.................</p> <p> “Borough Solicitor </p> <p>Endorsed on the back as follows:</p> <p>“MUNICIPAL LIEN DOCKET.</p> <p>No. 1316 Year 1914</p> <p>BOROUGH OF OLD FORGE,</p> <p>v.</p> <p>FOLEY ESTATE,</p> <p>Owner or Reputed Owner.</p> <p>MUNICIPAL LIEN.</p> <p>Filed, April 9, 1914.</p> <p>(Signed) John H. Bonner,</p> <p>Solicitor for Borough of Old Forge.”</p> <p>The court struck off the lien because it was not signed by the solicitor as provided by the Act of June 4, 1901, P. L. 368.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 7, March T., 1917,. by plaintiff, from judgment of O. P. Montour Co., June T., 1914, No. 32, for defendant n. o. y. in case of Oliver Hoover and James Carr v. William G. Pursel, Receiver of the People’s Bank of Danville, Pa.</p> <p>Assumpsit against the receiver of a bank to recover • money paid for a promissory note found to be worthless. Before Evans, P. J.</p> <p>At the trial it appeared that defendant as receiver of the. People’s Bank of Danville sold to the plaintiffs a promissory note under circumstances fully detailed, in the opinion of the Superior Court.</p> <p>The following endorsement was made on the back of the note when it was delivered to the purchaser:</p> <p>“For a valuable consideration, I assign the within, note to Oliver Hoover and James C. Carr this 19th day of July, without recourse.</p> <p>“William G. Pursel,</p> <p>“Receiver of People’s Bank, Danville.”</p> <p>When the purchasers of the note demanded payment of it from Frank J. Dickert, the endorsee, he produced to them the following memorandum in writing :</p> <p>“Frank J. Dickert.</p> <p>To the People’s Bank, Danville, Penna., Dr.</p> <p>In full of all claims and demandé v. Frank Dickert on a certain promissory note for $2,000 dated June 28,1910, made by L. A. Lange, endorsed by F. J. Dickert and held by the People’s Bank of Danville, Pennsylvania, and settled by agreement for $250.</p> <p>Scranton, Penna., 191</p> <p>Pay to the order of People’s Bank, Danville, Pennsylvania two hundred fifty dollars ($250) in full settlement of attached .claim.</p> <p>To The South Side Bank, Scranton, Penna.</p> <p>F. J. Dickert.</p> <p>(With the following endorsement on the back thereof) :</p> <p>F. J. Dickert</p> <p>to</p> <p>The People’s Bank, Danville, Pennsylvania.</p> <p>$250.</p> <p>This check is hereby accepted by the payee in full payment of the within account.</p> <p>The People’s Bank, W. G. Pursel, Receiver.” The defense of the receiver was that the acceptance of the check was not a good accord and satisfaction. The facts relating to the compromise settlement are stated in the opinion of the Superior Court.</p> <p>The jury returned a verdict for plaintiffs for $946.47. The court subsequently entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 43, March T., 1917, by Erie Railroad Company, from order of Q. S. Susquehanna Co., Jan. T., 1914, No. 11, discharging rule to set aside verdict as to costs in case of Commonwealth v. Frank P. McCarthy.</p> <p>Rule to set aside verdict as to costs.</p> <p>From the record it appeared that on January 13,1914, Frank McCarthy was indicted. The indictment contained two counts; the first count charged conspiracy; the second count charged forgery. The prosecutor, C. R. Smith, is an employee of the Erie Railroad Company and the money obtained by the defendant as charged in the indictment was the property of the Erie Railroad Company. The case was called for trial on April 14, 1914, and the jury on the same day returned a verdict of not guilty, and placed the costs upon the Erie Railroad Company, named as prosecutor. On March 9, 1915, the present rule was granted. The railroad company claimed that it was entitled to relief because it acted in good- faith, upon probable cause, without malice, and under the advice of the district attorney. The court discharged the rule..</p> <p>Error assigned was order discharging the rule.</p>

<p>Beneficial associations — By-laws—Beneficiary.</p> <p>Where one article of the by-laws of a beneficial association provides that “no beneficiary shall have a vested interest in the benefit certificate until the same has matured by reason of the death of the member,” and another article provides that if the single cash payment has been specified in the certificate, the said sum shall be paid to the beneficiary or her executors or administrators,” and it appears that a daughter of a member named as beneficiary died before the member, her administrator may maintain a suit against the association for the benefit. In such a case it cannot be argued that the suit could not be maintained because the beneficiary died before the member.</p> <p>Beneficial associations — Suspension of member — Cancellation of certificate — Failure to specify charges — Demand for reinstatement —Tender of dues — Proofs of death — Waiver.</p> <p>Where a member of a beneficial association has been suspended, and his certificate cancelled without any charges having been preferred against him, or any trial as provided by the constitution of the association, the association cannot, in a suit against it for death benefits, defend on the ground that the deceased had not demanded reinstatement, there being no provision in the constitution expressly requiring such action on his part.</p> <p>In such a case if the deceased made a tender of his dues after the suspension, which tender was refused by the collector and president of the association, he was not required to make further tenders.</p> <p>Where a beneficial association has denied all liability on a certificate for death benefits, it cannot in a suit against it for such benefits, defend on the ground that no proofs of death had been furnished. In such a ease the association will be deemed to have waived the furnishing of proofs of death.</p>

<p>Appeal, No. 46, March T., 1917, by defendant, from order of C. P. Columbia Co., Feb. T., 1916, No. 173, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Fred L. Stevens v. H. R. Baldy.</p> <p>Assumpsit on a promissory note. Before Evans, P. J.</p> <p>The note in suit was as follows:</p> <p>' Chicago, 111., June 3,1910.</p> <p>For value received the undersigned promises to pay at' Chicago, 111., to the order of Puritan Mfg. Co. three hundred dollars, as follows:</p> <p>$100 — 2 months after date (Pd. 9-7-10,</p> <p>$100 — 4 months after date.</p> <p>$100 — 6 months after date.</p> <p>A discount of 5 per cent, will be allowed if the full amount of this instrument is paid at maturity of first installment. (Signed) H. E. Baudy.</p> <p>P. O. Catawissa, Penna. ' By-</p> <p>Endorsed as follows:</p> <p>July. 7, 1910, pay First National Bank, Iowa City, Iowa, or order. (Signed) Puritan Mfg. Co.</p> <p>By M. H. Taylor.</p> <p>Sept. 7-10 Pd. 100.00</p> <p>Pay F. L. Stevens, or order ■</p> <p>(Signed) First National Bank, Iowa City, Iowa.</p> <p>Thos. Farrell, Cashier.</p> <p>The affidavit of defense in substance averred:</p> <p>(1) That the note sued upon was not a negotiable instrument.</p> <p>(2) That the note Avas signed by Stephen Baldy, the husband of the defendant, without her knowledge, consent, approval, or ratification, and without pecuniary advantage to her.</p> <p>(3) That the note was given to said company under a gambling or lottery contract conducted by it of which the plaintiff had notice, and knowledge before the note was delivered to him.</p> <p>(4) That the note was obtained by fraud and deceit practiced upon the said Stephen Baldy by the payee therein and that the plaintiff had notice and knowledge of said fraud and deceit before and at the time said note was delivered to him.</p> <p>(5) That the note was given to said company as- part and in pursuance of a written or printed contract in restraint of trade and is therefore void as against public policy.</p> <p>Evans, P. J., made the rule absolute filing an opinion which was in part as follows:</p> <p>“We think it clearly appears from a reading of the note that the same is a negotiable instrument within the meaning of the Act of May 16,1901, P. L. 194, “Relating to- negotiable instruments.”</p> <p>There is no doubt but - what the note was signed by Stephen Baldy, the husband of H. R. Baldy, the. .defendant. The husband however was the general manager and agent for the wife and in charge of the business belonging to the wife. The note was given by the husband while in charge of and managing his wife’s store business — and for the benefit of the business. The note was made payable in equal installments falling due two-, four and six months after date. The amount of the first installment was paid Sept. 7, 1910, — approximately thirty days after the first installment came due, from funds belonging to the business of the wife.</p> <p>In the twenty-seventh paragraph of the affidavit it is suggested that the note is void because of the fact that the defendant is a married woman, an implied admission at least, that the note had been signed by her husband and agent in the management of her business.</p> <p>From a careful reading of the statement of the claim and the affidavit and supplemental affidavit of defense and the exhibits attached thereto we are not convinced that the note was given in connection with a gambling or lottery contract or that fraud or deceit were practiced upon Stephen Baldy or that the note was given in restraint of trade and therefore,' void as against public policy, of which the plaintiff had notice prior to acquiring, title thereto. The theory of all parties, prior to the request for payment was to stimulate and promote trade. Rule absolute.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 19, March T., 1917, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1914, No. 157, on verdict for defendants in case of Lehigh Valley Railroad Company v. James Mansel and Albert H. Metzger,, Copartners, trading as Mansel & Metzger. Assumpsit for freight, demurrage, and storage charges in connection with a certain shipment of lumber. At the trial the jury under direction of the court found a verdict for defendants.

<p>Negligence — Municipalities—Defective sideioallc — Contributory negligence — Case for jury.</p> <p>. In an action by a woman against a municipality to recover dam-, ages for personal injuries resulting from stumbling over a defective curb, the pase is for the jury and a verdict and judgment for plaintiff will be sustained where the evidence tends to show that at the place of the accident the curb rose about four inches above the sidewalk and had been in such condition for at least nine years; that the accident happened between seven and eight o’clock p. m., May 11th; that plaintiff was looking where she was going- even though she 'did not see distinctly because of the darkness; that she had her eyes in front of her when she stepped o ff; and that when she tried to avoid what she supposed to be an approaching pedestrian she was looking at the place where she fell. . Mellhenney v. Philadelphia, 214 Pa. 44, distinguished.</p> <p>Pedestrians are not compelled to remain off the streets of a city because it is dark, but, using the care demanded by the circumstances, they may go at any hour where business or inclination takes them,.and they may assume that the municipality has performed its duty in keeping- the streets in a safe condition for use both at night and during- the day.</p> <p>Practice, O. P. — Motion, for judgment n. o. v. — Evidence.</p> <p>In granting a motion for judgment n. o. v. it must appear that there is no conflict of evidence as to a material fact; and the plaintiff must be given the benefit of every fact and inference pertinent to the issue which the jury could legitimately find from the evidence before them.</p>

<p>Appeal, No. 1, March T., 1917, by defendant, from order of O. P. York Co., Aug. T., 1915, No. 17, discharging rule for an appeal nunc pro tunc in case of George W. Eudy v. A.- C. Troup.</p> <p>Eule for an appeal nunc pro tunc.</p> <p>Eoss, J., filed the following opinion:</p> <p>The petition which brought this case before this court was presented April 26, 1915. It alleges, among other things:</p> <p>That on August 31, 1914, the petitioner appeared as defendant in a suit brought by the above-named plaintiff before "Squire Shenk, of Benna Vista,” of this county.</p> <p>Fairview Township, York County, Pennsylvania— That a hearing in said suit Ayas then and there had, at which the plaintiff and defendant were both present with their respective attorneys. Witnesses were sworn and heard on behalf of the plaintiff and defendant; when, after the testimony was closed the squire (or justice-of the peace) announced to the effect that he would not decide the case at that time but would decide it later. On this point the witnesses for the petitioner, on depositions taken in support of the petitioner, testify that the justice of the peace said he would inform the parties when he rendered his judgment, etc., etc. The witnesses for the respondent, in support of allegations contained in his answer, say in substance, that the justice of the peace said he would render his opinion on the 3d of September next, at 7 o’clock p. m., when the parties interested could be present and hear it.</p> <p>The truth of these conflicting statements is immaterial to the present inquiry.</p> <p>. The evidence shows that a judgment was rendered publicly by the justice of the peace at his office (the place where the hearing was held) on September 3,1914, at 7 o’clock p. m. The plaintiff and his attorney being present; the defendant and his attorney not being present.</p> <p>The petitioner prays that an appeal from said judgment shall be entered nunc pro tunc. The only reason upon which the prayer is based, is that he did not receive the notice of judgment, as he alleges the justice of the peace never notified him of its entry.</p> <p>That is a prayer for this court to do an impossible thing under the law and the circumstances of this case.</p> <p>The statute law regulating appeals from judgments of justices of the peace is plain and should be well understood and it is not within the province of this court to overrule those statutes.</p> <p>The merits of the suit before the justice cannot be inquired into by this court on this proceeding, and if the judgment was so unfair or inequitable as counsel for defendant attempted ,to argue to us, it was all the more necessary why the petitioner, or his counsel should have been alert to the remedy given him by well known law ; even if the justice of the peace did say that he would notify parties of his judgment, it should have been well known that the law requires him to render the judgment within ten days after the evidence had been heard. See act approved March 22,1877, P. L. 13.</p> <p>Parties to suits of this kind cannot excuse themselves because of neglect of counsel: Ward v. Letsskus, 152 Pa. 318.</p> <p>There is a class of cases which have allowed appeals to be taken nunc pro tunc, but there are none, which we have been able to reach, which allowed such appeals because of the laches of the petitioner. In the case before us there is no charge of. fraud, either legal or constructive. The thing most apparent from the testimony before us is, that the petitioner has slept on his legal rights, and it is not within the province of this court to disregard such neglect by what the attorney for petitioner describes as the exercise of “sound judicial discretion.”</p> <p>The language used by Mr. Justice Paxson, in Kerr v. Rogers, 9 Phila. 525, and sanctioned by the Superior Court, in 42 Pa. Superior Ct. 113, can be aptly applied to the circumstances of the present application: “The frequency of these applications admonishes us that we ought not to relax the rules of law applicable to such cases.”</p> <p>Nothing short of an act of assembly can give a man an appeal when he has lost his right thereto by neglect.</p> <p>There is a class of cases, the number of which we do not feel disposed to increase, in which it has been held that a defendant may be allowed to file his appeal nunc pro tunc.”......“The present case is not a case where the defendant’s attorney was, in any way, fraudulently misled or deceived by anything bn which he had a right to rely.”</p> <p>Where counsel is the agent of his client, as he was in this case, the neglect of the one is the neglect of the other: Ward v. Letzkus, 152 Pa. 318.</p> <p>I have carefully examined the cases cited in support of the respondent’s contention and I cannot find in any of them, an intimation that the “sound discretion of the court,” which was so eloquently and persistently invoked, can be made available to correct the consequences of negligence.</p> <p>And now, February 21, 1916, the rule is discharged at costs of petitioner.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 6, March T., 1917, by plaintiff, from judgment of O. P. York Co., Aug. T., 1913, No. 105, on verdict for defendants in case of Michael R. Hoffman, Trading as the Hoffman Leaf Tobacco Company, v. Jaines Adair and William H, Toomey, Trading as Enterprise Tobacco Company.</p> <p>Assumpsit fox* goods sold and delivered. Before Wanner, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>“As to the tender which has been testified to we instruct you that in fox*m the tender as made was sufficient. The check of the defendant was only refused because it was insufficient in amount to cover the whole of the plaintiff’s claim. The check cannot therefore be rejected as a tender unless it was not for the money then due in full. On the witness stand the plaintiff said he would have accepted the check if it had been large enough to cover his claim — he did not object to the check not being good, but to its not being sufficient in amount. So we say to you that if the defendants’ check and the money already paid by him at the time when the check was tendered was sufficient to cover everything due to the plaintiff, including interest, then the plaintiff can recover no more.” (.6)</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned, among others, were (5) answer to point quoted in the opinion of the Superior Court, and, (6) portion of charge as above quoting it.</p>

Appeal, No. 25, Oct. T., 1917, by defendant, from judgment of O. & T. Northumberland Co., Sept. T., 1916, No. 3, on verdict of guilty in case of Commonwealth v.. Dong Lee. Judgment for sodomy. Before Cummings, P. J. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed. Errors assigned were various instructions.

<p>Landlord and tenant — Replevin—Leased goods — Landlord’s warrant — Distress.</p> <p>Where the owner of furniture leased under a contract of bailment, issues a writ of replevin* to regain possession of the goods after default by the lessee, and the sheriff in executing the writ is notified by an agent of the landlord of 'the bailee that the goods were legally in possession of a constable who had distrained them at the instance of the agent, and the sheriff thereupon serves the agent and the constable and adds their name to the return, such ■action of the sheriff will not defeat a judgment on a verdict in favor of the owner of the goods, on the trial of the replevin, where there is evidence that the warrant exhibited to the sheriff was made after the goods had been seized by the sheriff,- and had been antedated and that the whole matter was a device to circumvent the effect of the replevin suit.</p> <p>In such a case the plaintiff in replevin, the owner of the goods, may show at the trial of the replevin suit that certain other goods of the tenant had been left on the premises at the time the writ of replevin was executed, and that the landlord had sold them. The amount received from such sale reduced the claim for rent pro tanto. The plaintiff was therefore entitled to have this amount considered if the case went against him.</p>

Appeal, No. 14, March T., 1917, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1913, No. 390, on verdict for plaintiff, in case of Mary C. Bower v. New Era Association of Grand Rapids, Michigan. Assumpsit on a contract in writing. Before Edwards, P. J. The contract sued upon was in the following form: Amount, Monthly premium, , $1,000 $1.80 THE NEW ERA ASSOCIATION ,20th Century BENEFIT CERTIFICATE. GRAND RAPIDS, MICHIGAN.

<p>Appeal, No. 23, March T., 1917, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1912, No. 657, on verdict for plaintiff in case of John Kearney v. Security Insurance Company of New Haven, Conn.</p> <p>Assumpsit on a policy of fire insurance. Before Edwards, P. J.</p> <p>From the record it appeared that the plaintiff held a policy of fire insurance of the defendant company on his furniture to the amount of $2,000. On February 11, 1912, a fire occurred on his premises, and subsequently at the request of the local agent he made out a list of the articles injured or destroyed with their value. The adjuster of the company went to the plaintiff’s house with the list in hand, and used it in checking up the loss. He objected to the value put upon the articles, but made no objection as to the form of the proof. At the trial the court admitted under objection and exception the list made out by the plaintiff. (1) The defendant objected that the proofs of loss were not in compliance with the terms of the policy. The plaintiff claimed that the company by its conduct had waived the requirement of the policy as to the proofs of loss. Other facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[“Now you would think from that statement of mine that that should be the end of the case; but it is not,' because if there was anything the matter with the proof of loss that was left in Mr. Fitzsimmons’ office, providing that you find that it was left there, and if Mr. Stuart, who represented the company, saw it and had it in his hands, and he thought then it was insufficient, too informal, that there was something the matter with it, then it was his duty to inform Mr. Kearney of that fact so that he could make a proper proof of loss. But instead of that, according to Mr. Stuart’s own testimony, what do they do? He takes a list of the goods, he goes up with Mr. Kearney to the house on Diamond avenue, and he figures and estimates how much the loss is on these different articles, and then he makes him an offer of about four hundred dollars. That is a recognition of liability on the part of the company, and the failure of the company, through Mr. Stuart, to demand additional proofs of loss or different proofs of loss, if you believe the facts, constituted a waiver, and, therefore, that question is out of the case, and the only question left then is, how much was Mr. Kearney’s damage in this case?</p> <p>“That, I apprehend, is the real question in this case, how much has the plaintiff suffered?”] (10)</p> <p>[“Was that such a proof of loss as the policy required him to give to Mr. Fitzsimmons, the local agent? There is a dispute in the testimony as to the character of that paper. Mr. Fitzsimmons says that there was no such paper furnished at all to him such as is testified to by Mr. Kearney. Mr. Kearney, I think, testifies that there was such a paper and that it was sworn to by him. The paper appears here to-day without any affidavit, without any evidence of its ever having been sworn to. You remember the testimony with regard to the notary public, that this affidavit wras taken before a notary public, before a young lady, I think they mentioned the name of Miss Lynch. I don’t know whether Miss Lynch is around here or not at the present time, but it would have been very desirable for both sides, one as well as the other, to have Miss Lynch here so that she could testify whether there was an affidavit of that kind attached to that paper. You cannot blame one side more than the other on that proposition because if Miss Lynch came here and said that she never swore Mr. Kearney to such a paper, or if she came and said that she did swear Mr. Kearney to such a paper, then, of course, the matter would be very definitely settled, especially in my mind, as to whether the required proof of loss was served upon Mr. Fitzsimmons within the twenty days.”</p> <p>Mr. Mumford: “I think your honor must have misunderstood ' the testimony of Mr. Kearney. He was asked on cross-examination if the young lady who took the acknowledgment was Miss Lynch or Miss Driesen, and he said it was not, but he didn’t know who the lady was.”</p> <p>The Court: “She was a tall lady and she had black hair.”</p> <p>Mr. Mumford:. “Yes, but it was neither Miss Lynch nor Miss Driesen.”</p> <p>The Court: “It would have been very easy for you to have called the two girls. I think you are one about as weak as the other on that proposition.”] (11)</p> <p>Verdict and judgment for plaintiff for $1,247.50. Defendant appealed.</p> <p>Errors assigned, among others, were (1) rulings on evidence quoting the bill of' exceptions; (10) above instructions quoting them. (11)</p>

<p>Appeal, No. 1, Feb. T., 1917, by defendant, from judgment of C. P. Lycoming Co., June T., 1915, No. 86, on verdict for plaintiff in case of Stanton D. Diffenderfer v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J., specially presiding.</p> <p>At the trial it appeared that plaintiff was injured on April 24, 1914, while riding as a passenger in one of defendant’s trains. The circumstances of the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,388.98. He-, fendant appealed.</p> <p>Errors assigned were in refusing judgment for defendant n. o. v.</p>

<p>Will — Devise—Charge on land — Vested and contingent estates.</p> <p>A gift of land by will to a son for life, and after his death to his children in equal shares “with this provision that they shall pay to the other devisees named in this my last will one-third of the valuation of said tract of land” charges the land with one-third of the valuation thereof payable at the death of the son, the valuation is to be ascertained as of the death of the son.</p> <p>In such a case the devise vested in the son’s children, and the legacies charged on the land vested in persons described as “devisees” in the testator’s will.</p> <p>Where there is a devise of a life estate followed by a remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children and this without regard to the question of whether or not a child survives the life tenant.</p> <p>If a devise of land upon which a legacy is charged, becomes vested either in possession or in interest immediately upon the death of the testator, and by the terms of the will is given subject to the payment of the legacy, the legacy must be considered likewise vested; and if the legatee should die before it becomes payable it will pass to his or her representatives,</p>

<p>Appeal, No. 89, Oct. T., 1916, by defendant, from judgment of Municipal Court, Philadelphia Co., Feb. T., 1915, No. 178, on verdict for plaintiff in case of James P. Houck, by his father and next friend, John H. Houck, and the said John H. Houck in his own right, v. Edmund Webster.</p> <p>Trespass for personal injuries. Before Knowles, J.</p> <p>At the trial it appeared that the plaintiff, James P. Houck, was a child eight years old when he was burned while playing on a vacant lot owned by the defendant at Thirty-third and Tasker streets, in the City of Philadelphia.</p> <p>Verdict and judgment for James P. Houck for $150, and for John H. Houck for $200. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Appeals, Nos. 95 and 320, from judgments of C. P. No, 4, Philadelphia Co., June T., 1914, No. 3619, on verdict for plaintiff in case of J. S. Jordan and Maumee Jordan, his wife, v. Edwin H. Vare.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>At the trial it appeared that Mrs. Jordan was injured on April 15, 1913, at Fifty-second street and Baltimore avenue in the City of Philadelphia. She was knocked down while walking on the sidewalk by a horse owned by the defendant, but which had been loaned to P. C. Eisele, a former employee of the defendant. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Maumee Jordan for $1,300, and for J. S. Jordan, her husband, $700. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Maritime liens — Liens—Boats—Contract—Acts of June 18,1886, P. L. 616; April -20,1858, P. L. 868, and-June 24,1895, P. L. 251.</p> <p>When oiie builds a boat, furnishing ajlthe labor and-materials and then sells the boat upon credit, the statutes, give him no lien for the unpaid balance of purchase-money; and when he contracts to build a boat to be delivered to another at a fixed price after its completion, he remaining the owner during the process of construction and until delivery, and then delivers the boat without taking security for the purchase-money, he cannot subsequently assert a lien upon the boat by virtue of any provision in the Acts of June 13, 1836, P. L. 616; April 20, 1858, P. L. 363, or June 24, 1895, P. L. 251.</p> <p>Where a corporation agrees in writing to deliver a house boat of certain style and dimensions, without stating whether it is to be a new or old boat, and without stating the time of delivery, partly for cash and partly for credit, and after the boat has been delivered and default made on the deferred payment, the company files a lien against the boat, and issues of fact are framed as to whether the boat delivered conformed to the contract, and whether it had been delivered in proper time, findings by a jury on these issues in favor of plaintiff, will not preclude the court from subsequently passing adversely to the plaintiff on the question of its right to file a lien for the unpaid purchase-money.</p>

<p>Appeal, No. 182, Oct. T., 1916, by defendant, from judgment of the Municipal Court of Philadelphia Co., Sept. T., 1914, No. 46, on verdict for plaintiff in case of Jacob Berreski, by his next friend and father, Michael Berreski and Michael Berreski, in his own right, v. Philadelphia Electric Company.</p> <p>Trespass to recover damages for personal injuries. Before Gilpin, J.</p> <p>At the trial it appeared that plaintiff Jacob Berreski was injured on August 1,1914, by an automobile belonging to the defendant. At the time of the accident the boy was between nine and ten years of age, and at the time of trial between ten and eleven years of age. He testified as to the speed of the automobile which struck him.</p> <p>On cross-examination he was asked this question:</p> <p>“Q. Are you accustomed to going alone on the street?</p> <p>“Objected to.</p> <p>“The Court: — Why should not he be accustomed to go alone on the street? I don’t think it is unusual for a boy to go alone on the street. ■ I will sustain the objection.</p> <p>“Mr. Myers: — I ask for an exception.</p> <p>“(Exception noted for the defendant by direction of the court.)” (1)</p> <p>The court charged in part as follows:</p> <p>[“This is a case founded on negligence and it is a little different from the ordinary cases of negligence which you have been called upon to try because to a child of tender years contributory negligence cannot be imputed. In other words, the courts have said that a child of tender years cannot be guilty of contributory negligence.”] (2)</p> <p>[“Mr. Myers: — I ask the court to instruct the jury as to contributory negligence.</p> <p>“The Court: — Gentlemen of the jury, a child of nine years old is presumed to have the same intelligence as a normal child of that age would have and I think I am safe in saying to you that the court will not attribute contributory negligence to a child of nine years old.”] (3)</p> <p>Verdict and judgment for plaintiff, Jacob Berreski for $1,000, and for Michael Berreski $92. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence; (2, 3) above instructions quoting them.</p>

<p>Appeal, No. 145, Oct. T., 1916, by defendants, from judgment of Municipal Court of Philadelphia Co., Sept. T., 1915, No. 155, on verdict for plaintiff in case of Diamond Power Specialty Company v. David Milne and Caleb J. Milne, Jr., trading as C. J. Milne & Sons.</p> <p>Assumpsit for a soot blower sold and delivered. Before Knowles, J.</p> <p>At the trial defendants claimed that they had made payment to one Frank 'H. Street, an agent of the plaintiff. The record showed that the plaintiff had issued a commission to take testimony in Detroit, and that this commission had been returned and filed. Attached to it was a letter of Frank H. Street.</p> <p>It appeared that the plaintiff was a foreign corporation, and that it had not registered as provided by the Acts of June 8, 1911, P. L. 710, and April 22, 1915, P. L. 170. There was evidence that the plaintiff had engaged in business in Philadelphia.</p> <p>The defendants made the following offer:</p> <p>“Mr. Weaver: I now offer in evidence, if the court please, letter attached to the commission and depositions filed of record in this court, from Frank H. Street to the Diamond Power Specialty Company, accounting for the money received from C. J. Milne & Sons for the blower that is the subject-matter of this controversy:</p> <p>“Mr. Rothschild: May I look at it?</p> <p>(Mr. Rothschild handed paper.)</p> <p>“Mr. Rothschild: Are you going to offer this?</p> <p>“Mr. Weaver: I am going to' offer that letter.</p> <p>(Objected to.)</p> <p>“The Court: Why? . ,</p> <p>“Mr. Rothschild: This is a letter from Mr. Street, and Mr. Street not being a party in this case, — and there is no evidence here, that the letter was ever actually received, and there is no evidence here as to any answer being to that letter by the plaintiffs; therefore, the offer of that letter is improper.”</p> <p>(Objection sustained. Exception noted for the defendant.) (6)</p> <p>Defendant presented this point:</p> <p>“2. It being admitted that the plaintiff company was not registered in Pennsylvania under the acts of assembly, inasmuch as it was doing business here in Pennsylvania, your verdict must be for the defendant.”</p> <p>Answer. Refused. (2)</p> <p>The court gave binding instructions for plaintiff. (1)</p> <p>Verdict and judgment for plaintiff for $215.56. Defendants appealed.</p> <p>Errors assigned were (1, 2) above instructions quoting them; and (6) ruling on evidence quoting the bill of exceptions.</p>

<p>Contract — Written agreement — Construction by action of parties —Pleadings—Practice, Municipal Court of Philadelphia.</p> <p>In a case tried in tbe Municipal Court of Philadelphia, without a jury, it appeared that plaintiffs and defendants had agreed in writing to exchange real estate. The property which the plaintiffs were to acquire was to be subject to a mortgage of a building and loan association. The agreement provided that “all back stock paid in on account of this building association mortgage be assigned free of costs” to the plaintiffs. The plaintiffs claimed1 that the installments on the stock were to be paid in full to the time of settlement, and produced evidence that defendants at the time of settlement had represented that the arrears were $26.25, and paid the plaintiffs that amount. The arrears were found to be $72.72. Suit was brought to recover the difference. Held, that a judgment for the plaintiffs should be sustained.</p> <p>In the above case, plaintiffs averred in a paragraph of their statement that “defendants recognizing their liability to pay said arrears, gave to the plaintiff at the time of settlement the sum of $26.25 with which to pay said arrears.” To this paragraph defendants answered: “While plaintiffs were given $26.25, it is-denied that it was given for the purpose stated.” Another, and a final paragraph of the answer averred that the sum of $26.25 was made in full payment and settlement of all claims of the plaintiffs. Held, that the final paragraph did not contain new matter to which a reply was required to be made under the statute.</p>

<p>Appeal, No. 179, Oct. T., 1916, by defendant, from judgment of O. P. Delaware Co., June T., 1915, No. 51, on verdict for plaintiff in case of Raymond McCaffrey v. William Lukens.</p> <p>Trespass to recover damages for personal injuries. Before Broomall, J.</p> <p>At tbe trial the jury returned a verdict for plaintiff for $303.75 upon which judgment was entered. On a motion for a judgment n. o. v., and for a new trial Broomall, J., filed the following opinion:</p> <p>By this action the plaintiff seeks to recover compensation for injuries caused by an automobile owned by the defendant and driven by his daughter, whn is under sixteen years of age. The verdict of the jury was ren.dered on February 15, 1916, in favor of the plaintiff for three hundred dollars. No complaint is made as to the amount of the verdict, nor as to the manner of the submission of the case to the jury. By this motion the defendant urges to our attention three propositions:</p> <p>1st. That the plaintiff was guilty of contributory negligence.</p> <p>2d. That there was no evidence which legally imposes upon the defendant any liability for the injuries caused by his daughter in driving the automobile.</p> <p>3d. That no negligence was shown in the daughter’s driving of the automobile.</p> <p>. The evidence upon the first question was to the effect that at the time of the accident, the plaintiff was a passenger in an automobile, and that the seats of the automobile being occupied, he was sitting on the side door with his leg protruding outside of the body of the automobile, and that defendant’s automobile ran against the side of the automobile in which he was riding, coming in contact with his leg producing the injuries of which he complains. It is contended that the protrusion of his leg outside of the body of the automobile whereby it was injured is negligence per se. It would be profitless to discuss this question upon principle, because it has been decided against the defendant’s contention in Little v. Telegraph Co., 213 Pa! 229, in which M!r. Justice Mestrezat says, “It is not of itself negligence for a person riding in a wagon on a public highway to permit his feet or arms to extend beyond the side of the vehicle.” The question of contributory negligence was submitted to the jury, who have found it in favor of the plaintiff.</p> <p>The evidence upon the second question was that the defendant was the owner of the automobile which collided with the automobile in which the plaintiff was riding, that he had bought it for the use of- his family, that at the time of the accident it was being driven by his daughter, who is under sixteen years of age, that she was on an errand to procure a fixture for defendant’s residence, that she had been sent on this errand by her mother, that the mother had defendant’s authority in a general way to procure supplies for his residence, that the defendant was away from home at the time of the accident, that the defendant had given orders to his daughter never to take the automobile out, without being accompanied either by himself or his son, and that she had so driven the automobile on numerous occasions. Under this evidence the question was submitted to the jury, whether the daughter was driving the automobile with the defendant’s authority, and they have found this question with the plaintiff. Was this a jury question? We think it was. Where a plaintiff shows that the driver, a minor child of the owner, is' driving a car which is maintained by the owner for the use of his family, to procure a fixture for his residence, under an order of the owner’s wife, who is authorized by the owner to procure it, the case is for the jury to find whether the car is being driven by the authority of the owner notwithstanding he has given orders that the driver should not drive the car unless accompanied by himself or son. The owner’s instructions as to the manner in which his service shall be performed will not relieve him from responsibility for the driver’s torts while violating his instructions: McClung v. Dearborne, 134 Pa. 396; Moon v. Matthews, 227 Pa. 488. The wife having the defendant’s authority to send the daughter on the errand, and having his authority to use the automobile, it is just the same if he had sent her himself, at the same time ordering her not to go unaccompanied by himself or son. She is performing his service, and the order relates only to the manner in which she shall perform it. The great test of liability is whether the driver is performing service for his master, on the one hand, or is upon his own business or pleasure on the other. Disobedience of orders are important to be considered in deciding this question, but when the conclusion is once reached that the driver is performing the authorized service of the owner, then orders as to the manner of performance are unimportant.</p> <p>The evidence upon the third question was two-fold; that which related to the manner of the accident and that which related to the violation of Section 8 of the Act of July 7, 1913, P. L. 672, which forbids the operation of an automobile on the public roads by a person under sixteen years of age. The evidence showed as to the manner of the accident, that the automobile in which the plaintiff was riding was proceeding 'westwardly on Third street, one of the main ■ arteries of travel of the City of Chester. It was what is called a jitney and was probably running at an excessive speed, but this, however much we may think it to be the cause of the accident, could not be attributable to the plaintiff. The defendant’s automobile was proceeding southwardly on Concord avenue which crosses Third street substantially at right angles. The driver of the defendant’s automobile intended to cross Third street diagonally somewhat to the left to a store on the south side of Third street at or near the corner of Concord avenue. The two vehicles came to the intersection at the same time, the drivers of each of them in ignorance that the other was about to occupy the intersection. The evidence is various- as to whether the driver of defendant’s automobile sounded a horn. When the drivers of the two vehicles each became aware of the presence of the other, they each endeavored to avoid a collision, the plaintiff’s driver by swerving to the left and the defendant’s by swerving to the right. In this they were not successful, and the defendant’s automobile ran into the side of the other. It was the duty of each of the drivers to use the highway with a due and reasonable regard to the use of it by others, and where one vehicle runs into- the side of another driven by a driver whom the law characterizes as immature, and where there is some evidence of absence of warning of its approach, it is the. province of a jury to say if that duty has been violated.</p> <p>' The defendant’s responsibility for the negligence of the violation of the automobile law rests upon the evidence that the driver under sixteen years of age, was upon his service at the instance of his authorized agent under his general permission to drive the car, and the evidence that she had driven it on numerous occasions. This also is a question for a jury.</p> <p>For the reasons above expressed, we refuse defendant’s motion for judgment non obstante veredicto, and plaintiff’s motion for a new trial dismissed.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

<p>Rond law — Public highway — Public use — Sidewalk.</p> <p>A property owner sued by a borough for the cost of constructing a sidewalk, cannot claim that the street on which the sidewalk was constructed was not a public highway, where the evidence shows that the street had been used as a public highway long before the incorporation of the borough, and that for thirty years subsequently to the incorporation, it had been maintained by the borough authorities, although never dedicated to public use by the owners of the land, nor formally accepted by the borough. The rights of the public in such a street are, however, founded only upon prescription, and are confined to the limits established by the public use. There is no presumption that it is of uniform width, or that it'is straight.</p> <p>Assessments for the construction and maintenance of sidewalks involve an exercise of the police power, not of the taxing power; it is, therefore, immaterial whether the property is rural or urban, and the municipality is not required to establish that the abutting property was peculiarly benefited by the improvement; nor can the owner claim that the property was farm land, and not properly included within borough limits.</p> <p>When the legislature confers upon a municipality the power to pass an ordinance to compel property owners to repair a sidewalk, an ordinance passed pursuant thereto cannot he impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power'of .the corporation, or under a grant of power general in'- its nature. An ordinance requiring' property owners to repair sidewalks, and if they neglect to do .so, after five days’ notice, to charge them with the cost of repairs made by the borough, is a valid ordinance.</p> <p>Where a property owner receives such notice, neglects to repair, and a suit is brought against her by the borough for the costs of the repairs, she cannot set up as a defense that the time given was not reasonable where it appears that after she received the notice, she informed the borough officials that she would not repair the walk because her property was farm land, and not suitable for building purposes. Having thus placed herself in a position where it was her duty to speak, she must be held to have waived any objection that the time allowed her to construct the sidewalk was insufficient.</p> <p>Where a borough has not established a paper grade for a street, it is the duty of an abutting owner called upon to rebuild a sidewalk, to construct the same, at the then existing grade of the old sidewalk.</p>

Appeal, No. 29, March T., 1917, by defendant, from judgment of O. P. Susquehanna Co., Nov. T., 1912, No. 182, on verdict for plaintiff in case of Mary Miller v. Delaware, Lackawanna & Western Railroad Company. Trespass to recover damages for death of plaintiff’s husband.

<p>Practice, O. P. — Trial — Mistake in charge —• Failure to call court’s attention to mistake.</p> <p>When a trial judge inadvertently confuses the testimony of a witness for the defendant with that of a witness for the plaintiff, hut counsel for the plaintiff does not call the judge’s attention to the mistake at the trial, and offers no sufficient excuse for failure to do so, a judgment on a verdict for defendant will not be reversed.</p>

<p>Contract — Penalty—Liquidated damages — Evidence—Bes adjudicata.</p> <p>Although the parties to a contract may use the word “penalty” to designate a payment to be made by one to the other in case of default, such designation is not conclusive. The question whether the payment is to be considered as a penalty, or as liquidated damages, is to be determined by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject-matter and its surroundings; and in this examination the courts will consider the relation which the sum stipulated hears to the extent of the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages, and such other matters as are legally or necessarily inherent in the transaction.</p> <p>Where a contract is for the performance or omission of various acts which are not measurable by any exact pecuniary standard, together with one or more acts in respect of which the damages on a breach of the covenant are certain or readily ascertainable by a jury, and there is a sum stipulated as damages, to be paid by each party to the other, for the breach of any one of the covenants, such sum is to be held to he a penalty merely, and not liquidated damages.</p> <p>Where a manufacturer of. a particular brand of cigars grants to another person the exclusive right to sell the cigars in a particular territory, the sales agent to pay a designated price for the cigars ten days after the receipt of the same, to use his best endeavors to sell the same and to sell no other ten-eent cigars than those of his principal, which were guaranteed to he satisfactory for ■ sixty days from date of shipment, and it is further provided that on default by either party there shall be paid to the other “one thousand dollars as a penalty,” the payment referred to must be considered as a penalty, and not as liquidated damages.</p> <p>In such a case a decree dismissing a bill in equity filed by the sales agent against his principal to restrain the latter from selling their product to others in the territory covered by the contract, and for an accounting for such sales, is not res adjudicata of an action of assumpsit subsequently brought by the manufacturer against the sales agent to recover the sum of one thousand dollars for a failure by the agent to use his best endeavors to sell the cigars in question. The plaintiffs in such action are not estopped because they did not set up their claim for damages in the equity suit,</p>

Appeal, No. 47, March T., 1917, by defendant, from order of C. P. Luzerne Go., Nov. T. , 1916, No. 531, making absolute rule «for judgment for want of a sufficient affidavit of defense in case of Mary Harkins v. Pennsylvania Mutual Life Insurance Company. Assumpsit on a policy of life insurance. From the record it appeared that the application which was attached- to the policy contained numerous representations as to health.

<p>Appeal, No. 60, March T., 1917, by defendant, from judgment of C. P. Luzerne Co., June T., 1912, No. 91, for plaintiff in case tried by the court under the Act of April 17, 1905, P. L. 183, in case of Bell Telephone Company of Pennsylvania v. City of Hazleton. Before</p> <p>Petition to determine amount of license fee.</p> <p>Puller, J., filed the following opinion:</p> <p>The questions at issue are:</p> <p>(1) Whether the annual license fee of forty-four cents imposed by the City of Hazleton, defendant, upon each of the poles of the Bell Telephone Company of Pennsylvania, plaintiff, in that city, is reasonable or unreasonable, and if unreasonable (2) what license fee would be reasonable.</p> <p>.We find the following facts:</p> <p>1. The City of Hazleton, one of the third class, defendant, is “a municipal corporation of this State, having authority under the law to charge a license fee against any telegraph, telephone or light or power company occupying the highways of said municipality with its poles, etc.”</p> <p>2. On March 1, 1895, said city adopted an ordinance providing, “That all telegraph, telephone, electric light, electric power, heating, or other company, street car companies and all other persons, companies and corporations owning, erecting, maintaining, using or permit-, ting to stand upon the highways of the City of Hazleton, any pole or poles, shall pay to said city a license tax of one dollar for each pole so owned, erected, maintained, used or permitted to stand upon such highway.”</p> <p>3. This-court, however, in the case of said city v. the Hazleton Electric Light and Power Company, No. 411, February Term, 1907, by decree nisi, November 15,1909, made final September 12, 1910, held that a license fee of one dollar per pole of that company was unreasonable and excessive, and that “an annual license fee of forty-four cents per pole should be paid to the said city by said Hazleton Electric Light and Power Company, in order to properly compensate the city for the necessary cost of the services performed or to be performed by it for the inspection and regulation of the poles, wires, conduits or cables of said company.”</p> <p>4. The Bell Telephone Company of Pennsylvania, plaintiff, is a corporation occupying the highways of said city with its poles, wires, conduits, or cables, to wit: In 1906, 267 poles; in 1907, 282 poles; in 1908, 292 poles; in 1909, 527 poles; in 1910, 667 poles; in 1911, 689 poles; in 1912 and 1913, 694 poles; in 19.14, 726 poles; in 1915 and 1916, 739 poles.</p> <p>5. Prior to said decision and afterwards, the said city, for the years 1906 to 1911, inclusive, imposed upon the Bell Telephone Company of Pennsylvania, plaintiff, an annual license fee of forty-four cents per pole aforesaid, the payment of which has been refused on the ground that “forty-four cents per pole is an excessive and unreasonable charge, not based upon the actual expense of inspection but at a rate intended to produce a revenue to said city.”</p> <p>6. Thus a dispute has arisen between the company plaintiff and the city defendant, whether said license fee of forty-four cents per pole thus imposed by the city for inspection and regulation under its police power is reasonable ; and the present proceeding has been duly instituted and heard to determine this dispute.</p> <p>7. The former decree of this court was rendered in a case involving a different company, whose wires carried heavier and more dangerous currents of electricity, and on evidence differing substantially from that adduced in the case at bar. Consequently it cannot be held in fact any more than in law, to have any controlling effect upon our present conclusions.</p> <p>8. The plaintiff’s poles are chestnut, an approved wood in respect to durability, with an average period of safe and sound service of at least fifteen years; the wires are copper of unlimited durability; the cross-arms are preserved against decay by creosote; and all the devices are of the most approved type.</p> <p>The best, the customary, and the only practicable mode of inspection is by prodding the pole with a sharp iron at the ground line, and by simple physical observation from the ground, of wires, cross-arms and other matters, which observation requires no expenditure of time beyond what is simultaneously used in the examination of poles.</p> <p>One competent man working eight hours per day, on a wage of forty cents per hour, can readily and thoroughly inspect the entire line of the plaintiff, say 800 poles, in four days, and one such inspection every two months would be an extremely liberal allowance for all the reasonable requirements.</p> <p>Conceding the desirability of continuous inspection through the year in preference to interrupted inspection at separate intervals of time, one man working forty-five minutes each day, at forty cents per houi’, could inspect an entire line of say 800 poles at least six times a year at a cost not exceeding $100.</p> <p>In fact, the plaintiff does maintain constant oversight on its own account. The occurrence of any break in the wires or of any other deranging accident along the line, is made immediately known at its central office by a mechanical device which announces any obstruction of the electric current, and the commercial interest of the company demands prompt reparation of the trouble in order to avoid interruption of the service. By this means and on this account, notice of the trouble comes with greater certainty and celerity than it could possibly come through any municipal instrumentality, and the self: interested motive for its speedy removal is quite as effective as any fear of municipal action.</p> <p>In fact, inspection costs the city nothing, because this work can be and is performed by the regular policemen in the course of their regular duties, by incidental observation.</p> <p>It was not shown that the amount of salary paid or the number of officers employed was affected by the inclusion of this observation in the services to be performed, nor has it been shown what the necessary cost of such service is, or that any actual cost is incurred thereby; but it would be fair to allow for such proportion of their time as these policemen bestow upon such observation, and a most liberal estimate of that time and of the compensation applicable théreto would not exceed one hundred ($100) dollars per annum for 800 poles.</p> <p>These conclusions are sustained by a great weight of testimony, and virtually are contradicted by only one witness, namely, the city engineer, who says that two men the year round on a policeman’s compensation, $67.50, per month, would be required to inspect all of the 3,300 poles in the city belonging to the plaintiff and other companies, a total expenditure of $1,620 per annum, about fifty cents per pole, which according to his judgment would be the fair and reasonable cost of necessary inspection.</p> <p>We are unable to sustain such an estimate in light of the facts.</p> <p>This case cannot be distinguished in any essential fact, inference, or element, from the case of Nanticoke v. Bell Telephone Company, 47 Pa. Superior Ct. 184, in which we fixed twelve cents per pole.</p> <p>9. From all the testimony in the case, it is found as a fact that an annual license fee of twelve cents per pole will properly compensate the said city for the necessary cost of the services performed or to.be performed by it for the inspection and regulation of the poles and wires of said company.</p> <p>Hence we state as our conclusions of law:</p> <p>1. “In every case the cost of inspection must be the measure of liability” (Del. & Atl. Tel. Co.’s Petition, 224 Pa., at page 66). .</p> <p>2. The maximum amount of annual license fee which should be charged by the City of Hazleton against the Bell Telephone Company of Pennsylvania, is twelve cents per pole.</p> <p>3. The ordinance fixing a fee of one dollar per pole and the imposition thereunder of forty-four cents per pole, are unreasonable, being for revenue only and not for legitimate protection against the cost of inspection and regulation aforesaid.</p> <p>Accordingly the prothonotary is directed to enter and .give notice of the following decree nisi:</p> <p>Now, December —, 1916, this cause came on to be heard at this term on petition, answer and testimony, and having been argued by counsel, upon consideration thereof by the court, it is ordered, adjudged and decreed that the license fee of one dollar .per pole fixed by the said ordinance, and for forty-four cents per pole imposed thereunder by the City of Hazleton, are unreasonable and excessive, and that the proper license fee under the law and the facts is twelve cents per pole.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 18, March T., 1917, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1916, No. 200, for defendant n. o. v. in case of Mary Scheffel v.. Williamsport Passenger Railway Company.</p> <p>Trespass to recover damages for injuries to an automobile in a collision with a street car. Before Channell, P. J., specially presiding.</p> <p>At the trial it appeared that the accident occurred on September 16, 1915, in the evening. The circumstances of the collision are set forth in the opinion of thé Superior Court.</p> <p>Verdict for plaintiff for $120. The court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 6, Feb. T., 1917, by plaintiff, from order of C. P. Tioga Go., Jan. T., 1915, No. 113, making absolute rule to open judgment in case of F. T. Howland v. Home Insurance Company of New York.</p> <p>Buie to open judgment.</p> <p>Cameron, P. J., filed the following opinion:</p> <p>The above action was brought on a policy of insurance covering an automobile, machinery and equipments.</p> <p>Judgment was entered against the defendant on motion of C. H. Ashton, March 1, 1915, for $1,028.66 for want of appearance or affidavit of defense.</p> <p>An execution was issued thereon the same day.</p> <p>The summons was returnable the 4th Monday of February, 1915, and was served on Charles Johnson, insurance commissioner, at Harrisburg, January 20, 1915.</p> <p>On the 20th of March the defendant by its secretary, whose duty it was to act in this behalf, made an affidavit setting forth that the defendant “Has a full, true, just, equitable and legal defense to the action, and that it is not in any way indebted to the plaintiff in any sum whatever by or under the terms of the contract of insurance upon which the action was brought.”</p> <p>That an appearance and affidavit of defense was not filed because none of the officers of the defendant company, nor any person acting for the defendant, knew that an action had been commenced, or was pending, until the execution was issued.</p> <p>That the summons served was improperly filed and mislaid by a clerk in tbe home office. That the default was caused by the mistake of the clerk and the improper filing aforesaid.</p> <p>The affidavit was filed in this court on April 1, 1915. It averred other specific items, all set forth in the affidavit which if sustained by evidence would defeat a recovery.</p> <p>The prayer was for a rule to show cause why judgment should not be opened and the defendant let into a defense.</p> <p>On same day rule was granted as prayed for.</p> <p>At the hearing the evidence sustained the material allegations set forth in the affidavit.</p> <p>Mr. McCallup, the adjuster for the defendant, testified that the officers had no notice of the action until the 6th of March, when the sheriff of Tioga County notified the company that he had an execution in the above case.</p> <p>Other witnesses testified that certain parts of the car were in good condition after the fire, and that they were taken away by persons other than the plaintiff, and that the car was in fact abandoned.</p> <p>Another witness testified that a new car of the make of the car burned could be bought from the Buick Company for $600.00.</p> <p>We deem it our duty under all the circumstances in this case to open the judgment as prayed for.</p> <p>And now, December 23, 1915, the rule to show cause why the above judgment should not be opened and the defendant let into a defense is made absolute and judgment opened.</p> <p>Error assigned was the order of the court making absolute rule to open judgment.</p>

<p>Criminal law — Libel—Trial before particular judge.</p> <p>A person indicted for libel has no constitutional right to be tried by a particular judge. He cannot object to being tried before a judge; specially presiding, called in pursuance of the acts of assembly. ,</p> <p>Libel — Criminal law — Candidate for public office — Privileged communication — Malice.</p> <p>Where a publication imputes dishonorable and dishonest action to a person in his professional conduct, as well as in his private life, the publication is libelous per se; and on the trial of an indictment against a person publishing it, the court is justified in expressing its opinion upon its libelous character.</p> <p>• Where a publication reflecting upon the public and private conduct of a candidate for office is libelous on its face, the court commits no error, in instructing the jury that the occasion and subject-matter were proper and in leaving to them the question whether the manner was proper, the publication without malice and based upon reasonable- ground. The burden of proof in such a case is on the defendant to disprove malice.</p> <p>Where a defendant indicted for a publication of an article libelous on its face, testifies that he depended upon street rumors, such testimony is not sufficient to negative the presumed malice, unless the rumors were such as would convince a reasonably prudent man.</p>

<p>Replevin — Ownership of automobile — Bailment.</p> <p>In an action of replevin to recover an automobile a verdict and judgment for the plaintiff will be sustained where the evidence tends to show that the plaintiff bought the automobile with his own money; that the carrier delivered the bill of lading for it to him; that the car was kept sometimes in his own garage, and sometimes in the garage of an automobile company of which the plaintiff was treasurer; and that the president of the corporation sold the car to the defendant without the plaintiff’s knowledge or consent. In such a case the mere fact that the car was used by the company, and the plaintiff was an officer thereof will not justify the court below in holding as a matter of law that plaintiff was precluded from questioning the effect of the sale by the president to the defendant.</p> <p>The title to personal property does not pass upon a sale by a custodian unless he possesses an .actual right, or the owner has permitted him to have an apparent fight to alienate.</p> <p>Where testimony as to the limitations of a bailment is in dispute, the question of the existence of the bailment is for the jury.</p>

Appeal, No. 138, April T., 1917, by defendant, from judgment of O. P. Erie Co., May T., 1914, No. 155, on verdict for plaintiff in case of Statement of Facts — Opinion of the Court. [67 Pa. Superior Ct. W. H. Hook V. F. J. Welch. Assumpsit on a contract of indemnity.

Appeal, No. 313, Oct. T., 1916, by Pottsville Union Traction Co., from order of Public Service Commission, Application Docket Pile A, No. 329, In re Application of Walter L. Moyer. Application for certificate of public convenience. The nature of the application and the testimony taken under it is summarized in the opinion of the Superior Court. Error assigned was the order allowing the certificate.

Appeal, No. 342, Oct. T., 1916, by Pottsville Union Traction Co., from order of Public Service Commission, Application Docket No. 328, In re Application of Joseph J. Brady. Application for certificate of public convenience. Error assigned was the order allowing the certificate.

<p>Appeal, No. 344, October T., 1916.</p>

Appeal, No. 39, April T., 1917, by plaintiff, from judgment of C. P. Erie Co., May T., 1915, No-. 36, for defendant n. o. v. in case of Julius C. Siegel v. New York Central Railroad Company. Trespass to recover damages for personal injuries, and for injuries to an automobile.

<p>Attorney and client — Accounting for proceeds of mortgage — Evidence.</p> <p>In an action by an executor against an attorney at law, to recover the proceeds of a mortgage collected by the defendant and for which it is alleged he’ did not account for to the deceased, where the plaintiff testifies that the defendant had admitted that he had collected the mortgage, but had not paid over the proceeds, and the defendant does not deny such admission, but claims that he stated to the plaintiff that he had immediately invested the proceeds in another mortgage for the deceased, it is reversible error to refuse to admit in evidence the second mortgage, which showed on its face that it was executed the day following the satisfaction of the first mortgage, that the name of the decedent appeared as one of the mortgagees, that the sum payable to her was precisely the same, and that the same person was comortgagee of the deceased in both mortgages.</p> <p>Evidence — Booh of original entry — Memorandum of moneys received.</p> <p>A memorandum of moneys received and paid out, entirely made up of cash items, and not containing any charges against any person, is not a book of original entry.</p>

<p>Liquor laws — Retail liquor license — Corporations—Fair associations.</p> <p>A fair association incorporated for the purpose of the “promotion, development and encouragement of agricultural, horticultural and mechanical interests and pursuits, and the maintenance of facilities for trotting and other innocent or athletic sports and games,” which holds an agricultural fair each year for a short period of time, has no legal power to hold a license to sell liquor at retail.</p>

<p>Appeal, No. 159, April T., 1917, by plaintiff, from judgment of C. P. Erie Co., Peb. T., 1916, No. 150, for defendant n. o. v. in case of Atlantic Refining Company v. New York, Chicago & St. Louis Railroad Company.</p> <p>Trespass to recover damages for injuries to an automobile, sustained at a grade crossing. Before WhittelSBY, J.</p> <p>At the trial it appeared that between ten and eleven o’clock p. m. on September 29,1915, plaintiff’s driver approached a grade crossing, and without stopping drove upon the tracks and collided with a train causing the injuries for which the suit was brought. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>The jury returned a verdict for plaintiff for $568.86. The court subsequently entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

Appeal, No. 83, April T., 1917, by defendants, from judgment of C. P. Somerset Co., Dec. T., 1912, No. 96, on _ ver diet for plaintiffs in case of Pittsburgh, Westmoreland & Somerset Railroad Company v. James S. Blair and David Blair. Assumpsit to recover an alleged balance due on a running account.

<p>Appeal, No. 127, April T., 1917, by defendant, from judgment of C. P. Greene Co., Sept. T., 1914, No. 77, on verdict for plaintiff in case of T. N. Millikin v. RichMll Township.</p> <p>Trespass to recover damages for personal injuries and injuries to an automobile. Before Irwin, J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned, amongst others, were portions of charge quoted in the opinion of the Superior Court.</p>

<p>Boroughs — Division into wards — Practice, Q. 8. — Amendment.</p> <p>Where three commissioners appointed by the Quarter Sessions reported in favor of dividing a borough into wards, but in their report, iii describing the boundaries in connection with a map, fail to include a portion of the borough, and the court confirms the report, the court may subsequently, on the application of the three commissioners, open the decree confirming the report so as to permit the correction of the manifest error appearing upon the face of the record, and the subsequent order of the court, confirming the supplemental report, will not be reversed by the appellate court.</p>

<p>Appeal, No. 123, April T., 1917, by defendant from decree of C. P. Cambria Co., Sept. T., 1913, No. 1, on bill in equity in case of John Leap y. John Leahey et al.</p> <p>Bill in equity for an injunction and an accounting.</p> <p>From the record it appeared that on April 10, 1900, Daniel Laughman and others who were the owners of certain lands in Washington Township executed an agreement in writing to John W. Mentzer which was in part as follows:</p> <p>“Whereas, the parties of the first part own as tenants in common in fee simple absolute, a certain tract of land known as the Dysart and Laughman Tract, situated in the Township of Washington, County of Cambria, and State of Pennsylvania.</p> <p>“Now this indenture witnesseth that the parties of the first part for and in consideration of the sum of one dollar, to each of them in hand paid by the party of the second part at the time of the execution hereof, the receipt of which is hereby acknowledged, have leased unto the party of the second part and his heirs and assigns all of the coal in what is known as the “Lemon Seam” on, in, or under the said tract of land, also the right to use all of the timber growing or that may grow on said tract of land, for mining or quarrying operations; also right of way over, under or through said tract of land for the purpose of getting at other lands and conveying coal and other substances therefrom.”</p> <p>The agreement provided for certain royalties.</p> <p>By sundry assignments and transfers, the rights of Mentzer under the agreement became vested in John A. Leap, the plaintiff, and by deed from the successors in title of Daniel Laughinan, and others, the title to their lands in Washington Township, subject to whatever rights were held therein by Mentzer or his successors, became vested in John Leahey and Thomas Leahey, two of the defendants.</p> <p>A summary of the pleadings and of the facts as found by the court below, is set forth in the opinion of the Superior Court. The court entered a decree in favor of the plaintiff.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Automobiles — C-ase for‘jury — Collision between automobile and motorcycle.</p> <p>In an action to recover damages for personal injuries and injuries to a motorcycle resulting from a collision between the motorcycle and defendant’s automobile, which occurred in full daylight at the intersection of two city streets, a judgment for the plaintiff will he sustained where the jury find specially from sufficient evidence (a), that the plaintiff had his motorcycle under control at the time of the collision; (b) that there was not room for the motorcycle to pass the automobile either to the right or left, at the time the collision occurred; (c), that the accident would have been avoided by the defendant looking up the street immediately before the collision occurred.</p>

<p>Judgment — Rule to strike off — Rule to open — Tax collector’s bond.</p> <p>Where a judgment entered on a warrant in a tax collector’s bond is regular on its face, and the court in which it is entered has full jurisdiction of the subject-matter, the judgment cannot be stricken off. If the defendants have a defense on the merits based on questions of fact, their remedy is by a rule to open the judgment.</p>

<p>Appeal, No. 102, April T., 1917, by plaintiff, from decree of C. P. Washington Co., Aug. T., 1916, No. 23, refusing decree in divorce in case of William F. Ford v. Goldie Miller Ford.</p> <p>Libel for divorce. Before Irwin, J.</p> <p>From the record it appeared that the ground alleged was cruel and barbarous treatment and indignities to the person so as to render libellant’s condition intolerable and life burdensome. The libellant based his case upon the testimony of himself and two other witnesses. The testimony is summarized in the opinion of the Superior Court. The court below entered a decree refusing a divorce and dismissing the libel.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 104, April T., 1917, by plaintiff, from decree of O. P. Washington Co., Aug. T., 1916, No. 209, refusing divorce in case of Wilmot Lester Parton v. Sarah B. Costlow Parton.</p> <p>Libel for divorce. Before Irwin, J.</p> <p>From the record it appeared that the grounds alleged were cruel and barbarous treatment and adultery. The evidence is summarized in the opinion of the Superior Court.</p> <p>Error assigned was decree refusing the divorce and dismissing the libel.</p>

<p>Appeal, No. 178, April T., 1917, by defendant, from order of C. P. Payette Co., March T., 1911, No. 316, refusing to revoke a decree in divorce in case of Rosemary McCormick Field v. James H. Field.</p> <p>Petition to revoke decree in divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below entered the following order:</p> <p>“And now, Sept. 12, 1916, after consideration, the demurrer of libellant to the petition of the respondent filed May 23,1916, is sustained and it is ordered and directed that the rule on the libellant to show cause Avhy the decree of March 18, 1911, and the order of April 11, 1916, recited in said petition, should not be revoked, be and the same is hereby discharged.”</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 184, April T., 1917, by plaintiffs, from order of G. P. Beaver Go., June T., 1916,-No. 331, refusing to take off nonsuit in case of Annie E. DeForest and H. A. DeForest, her husband, v. Henry Finn.</p> <p>Assumpsit for balance of purchase-money of real estate. Before Baldwin, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Collateral inheritance tax — Deeds to evade ta¿e — Evidence. Where three bachelor brothers, living together and keeping their funds in common, make mutual deeds of real estate in which the consideration is mentioned as one dollar and other valuable considerations, and these deeds are kept in a box where the brothers kept all their papers, and it is acknowledged that the deeds were made for the express purpose of evading the collateral inheritance tax, a delivery of one" of the deeds by one of the brothers in the belief of impending death, to another brother, is not sufficient to deprive the Commonwealth of the tax on the interest in the land described in the deed, if it appears that the brother who made the delivery of the deed did not die until four years thereafter, that the deed was not recorded until after his death, and that the three brothers continued to enjoy the benefits of the income from their lands deposited in the common fund, in the same manner as prior to the delivery of the deed.</p>

<p>Appeal, No. 90, April T., 1917, by Alice C. Grossman, from decree of O. C. Butler Co., June T., 1916, No. 74, setting aside appraisement for widow’s exemption in Estate of John S. Grossman, deceased.</p> <p>Exceptions to appraisement for widow’s exemption. Before Reiber, P. J.</p> <p>Prom the record it appeared that John S. Grossman married Laura L. Croll in 1885, and that they lived together until January 13, 1911, when they executed articles of separation by which they mutually renounced all rights in each other’s estates.</p> <p>After the agreement of separation decedent went to the State of Nevada, where he remained less than a year, obtained a divorce from his first wife, who remained at their former domicile in this county, and thereupon Grossman returned to Pennsylvania and married claimant on September 20,1914.' Grossman subsequently died and the second wife now claims the widow’s exemption.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in sustaining excéptions to widow’s appraisement.</p>

<p>Appeal, No. 32, April T., 1917, by defendant, from judgment of C. P. Indiana Co., March T., 1913, No. 280, on verdict for plaintiff in case of C. C. Waugaman v. Samuel L. Henry.</p> <p>Motion to quash appeal.</p>

<p>Appeal, No. 80, April T.,, 1917, by plaintiff, from order of C. P. Armstrong Co., June T., 1912, No. 22, refusing to take off nonsuit in case of Commonwealth to use of School District of Kittanning Borough y. David Gibson and John Campbell and A. E. Butler, doing business as Campbell & Butler, Garnishees.</p> <p>Attachment execution. Before King, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. ,</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 168, April T., 1917, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1913, No. 137, on verdict for defendant in case of Tranter Manufacturing Company v. Frank S. Blaney.

<p>Guardian and ward — Adoption of ward by guardian — Maintenance — Interest.</p> <p>A guardian who legally adopts his ward cannot, on filing his account as guardian, claim credit for the maintenance of the ward during the period in which she lived with him as a member of his family.</p> <p>In such a case it is immaterial that the father of the child signed a paper to the effect that if anything happened to him “whatever is done with the children,” the ’child in question was to go to the person who subsequently became her guardian and adopted father. An auditor’s action in allowing one dollar per week until the ward arrived at the age of fourteen, cannot be sustained on the theory that if an application had been made, the court would have allowed credit as for past maintenance of the child; and especially is this the ease where there is nothing to show that the adopted father could not have supported the child.</p> <p>A guardian received $26.67 in 1903, $133.34 in 1904 and later in the same year $235.55 and in 1907 the sum of $234.41, making a total of $629.97. The guardian had the funds in his hands until 1914, during which they were uninvested so far as his account showed. Held, that he should be charged interest on a fund of $400 for a period of seven years at 6 per cent.</p>

<p>Negligence• — Master and servant — Safe place of employment — • Contributory negligence.</p> <p>In .an action by a night watchman against his employer to recover damages for personal injuries sustained from falling into a pit over which he was crossing on a plank twelve inches wide, no recovery can be had where it appears that the plaintiff was sixty-eight years old, weighed two hundred and fifteen pounds, had defective eyesight and used a cane on account of rheumatism; that he was generally familiar with the building and construction that was going on; that he had not been invited or directed, nor was there any necessity for his using the plank as there were other ways by which he could have gone around the pit; and that according to his own testimony he “didn’t pay particular attention to it, was in a sort of hurry to get out.”</p>

<p>Appeal, No. 188, April T., 1917, by defendant, from judgment of 0. P. Butler Co., March T., 1917, No. 176, on verdict for plaintiff in case of Anna M. Griffin v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Reiber, P. J.</p> <p>The facts relating to the accident are fully stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $575. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

Appeal, No. 100, April T., 1917, by plaintiff, from order of C. P. Westmoreland Co., May T., 1916, No. 120, refusing to take off nonsuit in case of P. A. Farmer v. Pennsylvania Railroad Company. Trespass to recover the value of an automobile. Before Doty, P. J., Tbe court entered a compulsory nonsuit, which it subsequently refused to take off. Error assigned was the order of the court.

<p>' Negligence — Townships—Fire—Sparh from traction roller.</p> <p>A township is liable for the negligence of its employees in permitting--a -traetioii roller to emit sparks so as to burn-property.</p> <p>In an action against a township to recover damages for injury to a farm alleged to have been communicated by sparks from a traction roller used on a public highway near plaintiff's .land, a verdict and judgment for plaintiff will be sustained where the evidence shows that the roller was used on a public highway by defendant’s employees on the forenoon of the day when the fire occurred; that the roller was without a spark arrester; that coal was used for fuel; that the roller was propelled along the highway on an ascending grade; that in one place a spark thrown out ignited combustible material along the road; that this fire was extinguished by one of the men operating the machine; that a high wind prevailed; that there was much combustible material on the land adjoining the road; that there was little travel on the highway on this particular forenoon; and that no other cause for the fire was shown.</p> <p>In such a case it is not error to refuse to submit to the jury the question of plaintiff’s contributory negligence, where there is nothing to show that he could have extinguished the fire before it came on to his land.</p>

<p>Appeal, No. 29, April T., 1917, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1915, No. 605, on verdict for defendant in case of George Hobaugh, to use of John K. Hobaugh, v. Philadelphia Company.</p> <p>Assumpsit for an alleged breach of a contract in writing. Before McConnell, J.</p> <p>Prom the record it appeared that on January 1, 1886, George Hobaugh executed a written instrument by which he conveyed to the Philadelphia Company “its successors and assigns all the natural gas and petroleum reserving one-eighth of said oil within all that certain tract of land” particularly described in the deed. The writing further provided as follows:</p> <p>“The said party of the first part hereby granting, leasing and letting the said land to the said party of the second part, its successors and assigns for the sole and only purpose of mining, drilling and operating for natural gas and petroleum oil or either and of laying down, maintaining and operating and as often repairing and replacing lines of pipe (buried not less than two feet under ground) for the conveyance over said land of natural gas and petroleum oil produced upon the same or upon any other lands with the right to enter upon the said tract of land with the machinery apparatus and material necessary and useful for said purposes and of ingress and egress to and from said land for the said party of the second part, its employees and workmen at any and all times and the right of removing all machinery, fixtures and property placed upon the said land under this grant.</p> <p>“T.O HAVE AND TO HOLD the said natural gas and petroleum oil (reserving however to the party of the first part, his heirs and assigns, the undivided one-eighth (1-8) part or share of the petroleum produced from .the wells, drilled upon said land under said grant) and the estate and rights hereby granted and mentioned and such other rights and privileges as are incident and necessary to the proper enjoyment of the same. And the party of the second part hereby agrees that when and so long as gas is being produced from the wells on said land, or is being conducted over the same in pipe lines laid down under this agreement, the party of the first part may have therefrom gas sufficient for fuel at the two principal dwelling houses on said land by laying his own pipes to conduct the same from the well or pipe line.”</p> <p>George Hobaugh subsequently died having devised the land in question to his two sons Jacob and George and his two daughters. Other facts appear by the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Divorce — Desertion—Acquiescence—-Consent—Wilful -and malicious desertion.</p> <p>Consent to a desertion cannot be inferred from mere acquiescence in the desertion.</p> <p>Where a wife has established her right to divorce on the ground of desertion, she cannot be deprived of such right by reason of letters written by her more than two years after the desertion containing statements that her husband’s company was repulsive to her. Such letters are mere evidence of her state of mind, and consent to the desertion cannot be inferred from them.</p> <p>A wife is entitled to divorce .on the ground of desertion where it appears that her husband left their home without her consent and did not return;. that he never made any .effort to resume cohabitation ; that he had not contributed anything to her support after he left her; and that on one occasion after the desertion he went to her door, and when she asked what he wanted, he replied: “I don’t want you, that’s one......sure thing.”</p>

<p>Appeal, No. 28, April T., 1917, by defendant, from order of C. P. Allegheny Co., July T., 1916, No. 411, refusing an appeal from the county court in case of W. F. Frederick Piano Company v. Jacob Landau et al.</p> <p>Assumpsit to recover the rental of a piano under bailment. Before Carpenter, J.</p> <p>From the record it appeared that judgment was entered in the county court for want of a sufficient answer. A motion to open the judgment was overruled in the county court, and a petition was then filed in the Common Pleas for the allowance of an appeal. The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order refusing an appeal,</p>

<p>Landlord and tenant — Covenant for repairs — Injury to tenant’s goods.</p> <p>Where a tenant is in possession of a storeroom in a building under a lease to keep the premises “in good repair, including water pipes,” and the tenant’s goods are injured by a flood of water which was diverted into the storeroom through a defective rain-spout which connected the roof gutter with the ground, the landlord is liable to the tenant for the injuries sustained, if it appears that the'diversion of the water was due to the defective construction or maintenance of the roof gutter and down spouting, and that the roof gutter and down spout were not in any way a part of or connected with the premises leased by the tenant.</p> <p>In such a case evidence that an agent of the landlord had orally promised the lessee before the lease was executed that the premises would be kept dry, is immaterial.</p>

<p>Appeal, No. 40, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1914, No. 1829, on verdict for defendant in case of May, Stern & Co. v. C. C. Lintner et al.</p> <p>Replevin for goods under bailment.</p> <p>From the record it appeared that the defendant, Lintner, was the bailee of the plaintiff of a quantity of household furniture which he placed upon the premises which he had rented from W. R. Stoughton. Stoughton issued a landlord’s warrant, and pending a proceeding on the warrant, the plaintiff issued a writ of replevin. At the trial of the case judgment was directed for the defendant Stoughton, the amount of rent was determined and the value of the goods fixed at the amount stated in the affidavit accompanying the prsecipe for the writ of replevin.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were various rulings and instructions.</p>

<p>Appeal, No. 61, April T., 1917, by defendant, from judgment of C. P. Allegheny Go., April Ti, 1915, No. 1454, on verdict for plaintiff in case of Nora McQuaide v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co.</p> <p>. Trespass to recover damages for personal injuries. Before Maceablane, J.</p> <p>At the trial it appeared that plaintiff, was injured on July 31,1914, while she was riding as a passenger in one of defendant’s trains. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $750. Defendant appealed.</p> <p>Error assigned was in overruling motion of defendant for judgment n. o. v.</p>

<p>Constitutional law — Declaration of rights — Privileges and immunities of citizens — Cold storage law — Act of May 16,1913, P. L. 216.</p> <p>The Act of May 16,1913, P. L. 216, entitled “An Act for the protection of the public health and the prevention of fraud and deception, by regulating the storage and sale of cold storage foods; fixing penalties for the violation of the provisions thereof, and providing for the enforcement thereof,” and providing that certain named articles should not be sold for food after having been held in a cold storage warehouse for a certain number of months specified, is not unconstitutional as violating Article I, Sec. 1, of the Constitution of Pennsylvania, or as violating the Pourteenth Amendment of the Constitution of the United States.</p> <p>Laws enacted for the protection of human life, or for the prevention of .fraud and the remedy of public evils are entitled to a liberal construction.</p>

<p>Appeal, No. 75, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., July T., 1914, No. 1882, on verdict for plaintiff in case of M. B. Cain v. John C. Werner.</p> <p>Assumpsit to recover commissions for the sale of real estate. Before Swearingen, J.</p> <p>At the trial it appeared that the defendant employed the plaintiff to sell property for him, and it was agreed that plaintiff should receive a commission of five per cent., and the price fixed for the property was $27,000. Plaintiff brought to the attention of Fred. Vogel the property in question, and according to the plaintiff’s testimony Werner agreed to sell to Vogel for $27,000. This transaction took'place in November, 1913. Nothing further seems to have been done until March 6, 1914, when Werner entered into a written contract to sell the property to Vogel. Defendant claimed that Vogel had refused to purchase the property in November,, and that he entered into an independent arrangement with him, and that the sale was arranged through another person than the plaintiff, and that defendant had paid such person a commission.</p> <p>Verdict and judgment for plaintiff for $1,387.50. Defendant appealed.</p> <p>Error assigned was in overruling defendant’s motion for judgment n. o. v.</p>

<p>Negligence — Township—Damages—Permanent injuries.</p> <p>A verdict against a township for permanent injuries to a little girl six years old, will be sustained where it appears that the plaintiff was pinned under a wagon which went over an unguarded place in a road; that at the time she was a perfectly healthy child; that when she was taken from under the wagon her face was black, she vomited blood, and was unconscious for two days; that there was an abrasion at the base of the skull; that it was a month before she was “able to be around”; that for two years up to the time of the -trial, she was in a very nervous condition; that the attending physician testified that she had concussioli of the brain due to the accident; and that the medical expert for the plaintiff testified that from consideration of the symptoms and from the deseription lie had of the accident, he was of the opinion that the injury was permanent. ■</p>

<p>Appeal, No. 96, April T., 1917, by defendant, from order of County Court of Allegheny County, No. 816, of 1916, Commonwealth Docket, affirming summary conviction before a magistrate in case of Commonwealth v. Joseph Wormser.</p> <p>Appeal from summary conviction before a magistrate. Before Drew, J.</p> <p>From the record it appeared that the defendant was convicted before Magistrate John J. Sweeney on two counts of an information which charged as follows:</p> <p>On or about the 17th day of May, 1916, said Joseph Wormser, being then and there within said school district and the agent or manager of said Wormser Glass Company, did employ or permit one, James Fox, being then and there in affiant’s judgment, a minor child under the age of sixteen years, to work in, about, or in connection with the factory or establishment aforesaid, and Avithin said school district, without an employment certificate, contrary to the provisions of an act of the general assembly of the Commonwealth of Pennsylvania, in such case made and provided.</p> <p>And said Charles Reisfar, Jr., does on his oath further complain and say that said Joseph Wormser, as agent or manager of the said Wormser Glass Company, did employ or permit the said James Fox to work in, about, or in connection Avith the factory or establishment aforesaid, and within said school district, before six o’clock in the morning and after eight o’clock in the evening, contrary to the provisions of an act of the general assembly of the Commonwealth of Pennsylvania, in such case made and provided.</p> <p>The court affirmed the summary conviction.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 115, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1912, No. 752, on verdict for defendant in case of Victor J. Schmitt, Receiver of the Interstate Lumber Co. v. Burns, Fleming & Co.</p> <p>Assumpsit to recover the amount of certain checks. Before Macfarlane, J.:</p> <p>At the trial it appeared that the suit was brought to recover the amount of checks drawn by W. A. Coleman of the International Lumber Company on the account of the company to pay certain personal indebtedness of his own to the defendants, Burns, Fleming & Company. The evidence is summarized in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in overruling plaintiff’s motion for judgment non obstante veredicto, and in admitting the evidence referred to in the opinion of the Superior1 Court.</p>

<p>Banks and banking — Certification of check — Certification equal to -acceptance — Act of May 16, 1901, P. L. 19k — Corporations— Treasurer — Check.</p> <p>Where the treasurer of a corporation draws a cheek on his company’s account in a trust company and signs the check with the name of his company and his own name as treasurer, and the check shows on its face that it is to pay the treasurer’s personal indebtedness, and the trust company certifies the check, a bank which subsequently pays the cheek in the course of business is not bound to inquire as to the authority of the treasurer to use his company’s funds. Under the Act of May 16, 1901, See. 187, P. L. 194, the certification of the check was equivalent to an acceptance, and the trust company became responsible for its payment.</p>

<p>■ Principal and agent — Letter of attorney — Limitations on powers of attorney — Commissions for negotiating loan.</p> <p>Where a letter of attorney by a mother to her sons gives general power over real and personal property but provides that, “nothing herein contained shall give them or either of them power and authority to sell, convey, mortgage, pledge or otherwise encumber the said property,” the sons cannot bind their mother by a contract to pay commissions to a broker for negotiating a mortgage loan on real estate. A general power at the end of the letter to act for the principal as largely as she could do if personally present, does not authorize such a contract.</p> <p>Letters of attorney are to be strictly interpreted and their authority is never extended beyond that which is given in terms or that which is necessary and proper for carrying the authority into effect. A special power must be strictly pursued and whoever deals with an agent constituted for a special purpose- deals at his peril when the agent passes the precise limits of his power.</p> <p>Contract — Commissions for procuring mortgage loan — Construction of contract.</p> <p>Where a contract to pay commissions to procure a mortgage loan which was to include an amount sufficient to pay off an existing mortgage, is conditional upon the consent of the mortgagee to accept payment of the existing loan, no recovery of commission can be had if such consent is not procured.</p>

<p>Appeal, No. 78, April T., 1917, by Nellie S. Kaufman, from decree of O. C. Allegheny Co., April T., 1916, No. 8, sustaining exceptions to adjudication in Estate of Sibilla Kaufman, deceased.</p> <p>Exceptions to adjudication.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court. , ,</p> <p>,, Error assigned was in sustaining exceptions to adjudication, and in allowing W. Gr, Wilkins $900 for plans .fop a building.</p>

<p>Appeal, No. 89, April T., 1917, by plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1915, No. 357, refusing a divorce in case of John B. Reynolds v. Alice Duff Reynolds.</p> <p>Libel for divorce. Before Swearingen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree refusing divorce.</p>

<p>Appeal, No. 93, April T., 1917, by defendant, from order of C. P. Allegheny Co., April T., 1916, No. 743, refusing an appeal from the Allegheny County Court in case of Reymer Bros., Inc., v. Consolidated Ice Company.</p> <p>Assumpsit in the county court to recover the amount of a judgment which the plaintiff had been compelled to pay to Margaret J. Spratt. See Spratt v. Reymer Bros., 57 Pa. Superior Ct. 566.</p> <p>From the record it appeared that on October 10,1911, Margaret J. Spratt fell into an opening in the sidewalk belonging to the premises owned by Reymer & Bros;, Inc., which had been left open by the employees of the Consolidated Ice Company. Other facts appear by the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiff for $1,247.13 in the County Court.</p> <p>Error assigned was in refusing appeal from judgment of the County Court.</p>

Appeal, No. 150, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1917, No. 646, refusing appeal from County Court in case of R. S. Wile v. John K. Ewing. Appeal from judgment of County Court. Prom the record it appeared that the case was tried by the County Court without a jury, and the judgment was entered for plaintiff for $172.50. Plaintiff’s claim was for services as a metallurgical engineer.

<p>Appeal, No. 169, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1916, No. 448, on verdict for plaintiff in case of M. H. Pickering Company v. H. H. Lutz, defendant, and Silas P. Sadler, Rufus Martin and J. J. Devine, Intervening defendants.</p> <p>Replevin for household goods. Before Carnahan, J.</p> <p>From the record it appeared that the goods levied upon had been leased under installment leases by M. H. Pickering Co. to H. H. Lutz and his wife. The transactions between the plaintiff and Lutz and'his wife are explained in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in refusing plaintiff’s motion for judgment n. o. v.</p>

Appeal, No. 189, April T., 1917, by plaintiff from judgment of C. P. Allegheny Co., April T., 1916, No. 448, on verdict for defendants in case of M. H. Pickering Company v. H. H. Lutz, defendant and Silas P. Sadler, Rufus Martin, and J. J. Devine, Intervening defendants. Replevin for household goods. Before Carnahan, J. From the record it appeared that the goods replevied were the same goods which are described in the report of H. M. Pickering Co. v. Lutz, supra.

Appeal, No. 153, April T., 1917, by defendant, from order of C. P. Allegheny Go., Jan. T., 1917, No. 1651, dismissing appeal from judgment of County Court in case of H. A . Gaston v. Martha P. Vitte and Paul R. Vitte. Rule for appeal from County Court. . Before MAcFARLANE, J. From the record it appeared that the case was tried in the County Court without a jury.

<p>Slander — Damages—Special damages — Loss of credit.</p> <p>In an action for slander when the plaintiff claims special damages for loss of credit at a bank, it is reversible error for the court to submit the question to the jury, where there is no evidence that plaintiff’s loss of credit was due to the slanderous words, but on the contrary the cashier of the bank testified that the plaintiff’s failure to protect his notes, was the cause of the stopping of his ■credit. In such a case the question of special damages for loss of position as a lay preacher is properly for the jury, where it appears that the congregation which employed plaintiff had n'o church, but was compelled to meet in the house of a member, and that the latter and his wife refused to permit plaintiff to preach in their house.</p> <p>An action of slander may be maintained against a school director by a contractor for a school building for words uttered to other directors, charging the plaintiff with larceny of material and insisting that he had proof of it. If he had narrated the facts as he had heard them, the words might have been privileged.</p>

<p>Appeal, No. 184, April T., 1917, by plaintiff, from order of C. P. Allegheny Co., Jan. T., 1917, No. 1798, making absolute rule to set aside service of writ in case of Pittsburgh Wholesale Grocery Company v. L. P. Rearich.</p> <p>Rule to set aside service of writ.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule to set aside service of writ.</p>

Appeal, No. 31, March T., 1917, by Martin Kristula from order of C. P. Luzerne Co., May T., 1916, No. 84, refusing application for charter In re Incorporation of the Matki Boski Bolesne Polish National Catholic Church. Application for charter. Before Fuller, J. The application for the charter contain inter alia, the following articles, viz: “1.

Appeal, No. 151, April T., 1917, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1916, No. 739, on verdict of guilty in case of Commonwealth v, Charles Weber. Indictment for seduction, fornication and bastardy. Before Carnahan, J. From the record it appeared that the offense charged in the indictment was committed in 1910, and that the defendant was arrested and indicted in 1916. The opinion of the Superior Court states the facts.

<p>Appeal, No. 163, April T., 1917, by defendant, from order of C. P. Allegheny Co.’, July T., 1916, No. 73, refusing appeal from judgment of the County Court in case of Blanche D. Linhart v. Central National Bank of Wilkinsburg.</p> <p>Petition for appeal from judgment of County Court. Before Evans, J.</p> <p>From the record it appeared that plaintiff had recov- ' ered’a judgment against defendant for the amount ’of a check which defendant through neglect had failed to collect.</p> <p>The check and its endorsements were as follows:</p> <p>J. S. & W. S. KUHN</p> <p>(K) Incorporated. No. 21294</p> <p>Investment Bankeks.</p> <p>Pittsburgh, Pa. Jul 3 1913</p> <p>Pay to the order of Mrs. Blánche D. Linhart. .$1006.32</p> <p>One thousand Six 32/100....................Dollars</p> <p>To Pittsburgh Bank for Savings Pittsburgh, Pa.</p> <p>James K. Duff,</p> <p> Treasurer. </p> <p>Countersigned J. G. North,</p> <p>Assi. Treasurer.</p> <p>ENDORSEMENTS:</p> <p>Exhibit 1 11/23/15 E. M.</p> <p>Mrs. Blanche D. Linhart</p> <p>Ex No. one</p> <p>Pay to the order of</p> <p>Monongahela National Bank, Pittsburgh, Pa.</p> <p>All prior endorsements guaranteed Jul3 1913</p> <p>Central National Bank, Wilkinsburg, Pa.</p> <p>Paid through Pittsburgh Clearing House</p> <p>All prior endorsements guaranteed Jul5 1913</p> <p>Monongahela National Bank</p> <p>Other facts appear by the opinion of the. Superior Court.</p> <p>Error..assigned was in refusing appeal.</p>

<p>Appeal, No. 101, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 2620, on verdict for plaintiff in case of Catherine E. Stephenson v. The Colonial Life Insurance Company of America.</p> <p>Assumpsit to recover in the county court a balance alleged to be due on a policy of life insurance.</p> <p>From the record it appeared that the plaintiff recovered in the county court a judgment for $191.50. On appeal the case was tried before Carnahan, J., in the Common Pleas, and a verdict and judgment for plaintiff was rendered for $216.25. The facts are stated in the opinion of the Superior Court.</p> <p>Error - assigned was in refusing binding instructions for defendant.</p>

<p>Negligence — Master and servant — Oiling machine in motion— Contributory negligence.</p> <p>An employer will not be held liable for the death of a boy eighteen years old while, oiling a machine in motion, where it appears that the deceased had worked at the same character of employment for two years, and was thoroughly familiar with the operation and care of the machine; that he had been instructed not to oil the machine while it was in motion; that in spite of instructions he climbed up on the frame work of the machine four feet from the ground, to get to the oil cups which were seven feet inside the frame, and while so doing was caught into the mesh of two cogwheels and killed.</p> <p>In such a case the employer cannot be charged with negligence in not maintaining an artificial guardrail at the place, inasmuch' as such rail would not have given the deceased any additional notice of the danger, which was open and apparent to any one.</p>

<p>Appeal, No. 26, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., July T., 1916, No. 507, on verdict for plaintiff in. case of John Farbarik in his own right and as father and next of kin of Henry Farbarik, a minor, v. William C. Jones.</p> <p>Trespass in the County Court to recover damages for injuries to a child seven years old.</p> <p>From the record it appeared that Henry Farbarik was injured on the afternoon of January 8,1915, while playing in the school yard of a public school building in Turtle Creek Borough. At the trial in the County Court the plaintiffs recovered a verdict. On appeal to the Court of Common Pleas it was ordered that judgment be entered in the County Court for plaintiffs. The circumstances of the áccident are’ stated in the opinion of the Superior Court.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 179, April T., 1917, by Pittsburgh Trust Company, from order of C. P. Allegheny Co., Oct. T., 1916, No. 382, dismissing exceptions to sheriff’s return in case of Mary A. Gosser v. Elmer E. Yohn.</p> <p>Exceptions to sheriff’s return.</p> <p>Prom the record it- appeared that the fund for distribution arose from the sale of certain real estate in foreclosure proceedings under a first mortgage. The opinion of the Superior Court states the facts.</p> <p>Error assigned was in dismissing exceptions to sheriff’s return.</p>

Appeal, No. 183, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1915, No. 67, on verdict for defendant in case of MeCreery & Company v. Ida Walton Scully. . Assumpsit against a married woman for necessaries. Before Brown, J. At the trial it appeared that the claim was for $75.91, being mostly for articles of clothing and furniture. Other facts appear by the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appeáled.

<p>Deeds — Building restrictions — Covenants—Car trades and poles.</p> <p>Where the deeds to a number of lots abutting on a street in a residential district provide that “no dwelling house or other building of any kind shall ever be erected or placed on said lot within 20 feet” of the street and that “a space of 20 feet shall always be open and clear of buildings or parts of buildings whatsoever” and the owners by a supplemental agreement duly recorded, increase the space to 40 feet and covenant with each other “not to build or erect or suffer to be built or erected a building of any character whatever” in such space, a street railway company which has purchased two of the lots will be enjoined from lowering the grade of its lots within the restricted space and erecting poles and laying tracks for a loop, on which street cars of large dimensions would pass or stand during any hour of the day or night.</p> <p>Restrictions are to be construed most strongly against the grantor. They should also be conformable if possible, to the letter and the obvious intent of the grant. ' All rules of construction are simply means to a given end, by those methods of reason which experience haa taught are best calculated to lead to the intention, and generally no rule will be adopted to defeat the intention. Whatever may1 have been the earlier doctrine, it is now thoroughly settled that technical rules of construction are not favored, and should not be applied so as- to defeat the fair intention of the parties. *</p>

Appeal, No. 196, April T,, 1917, by plaintiff, from judgment for defendant n. o. v. in ease of E; C. Young v. Frank A. Dempsey. Assumpsit by real estate broker for commissions. At tbe trial tbe jury returned a -verdict for plaintiff for $600.

Appeal, No. 197, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., April T., 1916, No. 742, on verdict for .plaintiff in case of John B. Shannon, trading as John B. Shannon Company v. August Cobbell. Assumpsit to recover commissions on the sale of real estate. At the trial the jury returned a verdict for plaintiff for $1,000.

<p>Appeals — Quashing appeals — Failure to print copy- of ordinance in paper booh. ,</p> <p>Where on an appeal from a decree dismissing a bill in equity, the only assignment of error is the decree, and it appears that the question involved was the validity of a municipal ordinance regulating jitney busses, the appeal will be quashed, if the appellant fails in his paper book to print a copy of the ordinance in question, and the record fails to show that the- ordinance was offered in evidence.</p>

Appeal, No. 91, April T., 1917, by plaintiff, from judgment of C. P. Clarion Co., Dec. T., 1911, No'. 27, for defendant, on case tried by the court without a jury in case of W. L. Hoover, Administrator of John Hoover, deceased, v. H. B. Summerville, Executor of J. H. Powers, deceased. Rule to open judgment. Criswell, P. J., filed the following opinion: Trial before the court without a jury as per submission dated December 21, 1911, and filed. pacts, 1.

<p>Courts — County Court of Allegheny County — Jurisdiction—Appeals in civil suits — Penalty under Act of June 28,1879, P. L. 179— Selling ungauged liquid merchandise.</p> <p>A suit before a magistrate to recover the penally provided by the Act of June 28, 1879, P. L. 179, is a civil action; and where a judgment against the defendant in such a suit has been appealed to the County Court of Allegheny County, and such judgment reversed, an appeal from the judgment of the County Court lies exclusively to the Common Pleas of Allegheny County under the various acts creating and regulating the procedure, in the county court of Allegheny County. If an appeal is taken from the judgment of the County Court to the Superior Court, such appeal will be quashed.</p>

<p>Appeal, No. 129, April T., 1917, by plaintiff, from order of Q. S. Lawrence Co'., Sept. Sessions, 1916, No. 63, setting aside a portion of the verdict relating to costs in case of Commonwealth v. C. K. Bixon.</p> <p>Indictment for carrying a concealed weapon. Before Sloan, P. J.</p> <p>At the trial the jury returned the following verdict:</p> <p>And now, to wit: Sept. 22, 1916, we, the jurors empaneled in the above entitled case find the defendant C. K. Bixon, not guilty, but pay half cost, and C. A. Livingston, prosecutor, pay half cost.</p> <p>Subsequently the defendant presented a petition to the court in which-he averred as follows:</p> <p>“That his employment was from its nature hazardous and that the carrying of said weapon was necessary for the protection of the defendant.</p> <p>“That the said defendant was a special officer in the employ of the Wolcott Detective Agency, and was carrying a revolver for the defense of his person in pursuit of his employment.</p> <p>“That as a special officer he had the right to carry said weapon and was doing it for a lawful purpose.</p> <p>“That the finding of the jury was contrary to the charge of the court:</p> <p>“Therefore it is prayed that the portion of the costs in said case which the jury placed on the said C. K. Bixon be stricken off and an order issued directing that the County of Lawrence pay that portion of the costs in this case which the jury placed upon the defendant, and will ever pray.”</p> <p>The court made the following order:</p> <p>Now, Sept. 27, 1916, the within petition presented in open court and it is ordered the costs in the within case which were placed by the jury on C. K. Bixon, the defendant, be stricken off and that the County of Lawrence be directed to pay this portion of said costs.</p> <p>jError assigned was the order of the court.</p>

Appeal, No. 28, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., August Sessions, 1916, No. 546, on verdict of guilty in case of Commonwealth v. Morris Weiner. Indictment for keeping a disorderly.house, etc*... Before Crane, J. ..... • .. ■ - . At the trial the jury .returned a verdict of guilty upon which judgment of sentence was passed.

<p>Appeal, No. 191, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1916, No. 927, on verdict for defendant in case of Elizabeth Mary Walker v. Mary M. Davis.</p> <p>Replevin for goods distrained for rent. Before Brown, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were various rulings referred to in the opinion of the Superior Court.</p>

<p>Appeal, No. 12, March T., 1917, by plaintiff, from order of Public Service Commission, Complaint Docket, No. 488, in case of Pennsylvania Railroad Company v. The Public Service Commission of the Commonwealth of Pennsylvania.</p> <p>Complaint for violation of the fifth section of the Act of June 19, 1911, P. L. 1053.</p> <p>The complaint alleged that on November 12, 1915, the Pennsylvania Railroad Company operated train No. 26 between Harrisburg and Philadelphia, consisting of engine 460, one United States mail car, one combined baggage and passenger car, one day coach, one dining car, one parlor car and five sleeping cars in violation of Section 5, of the Act of June 19,1911, in that the train was operated without a baggageman. The complaint prayed that upon final hearing the commission make such order in the premises as may seem meet.</p> <p>The answer of the Pennsylvania Railroad Company admitted the facts contained in the complaint but denied that the train was run or operated in violation of Section 5, of the Act of June 19, 1911.</p> <p>The commission entered an order against the railroad company in accordance with the complaint.</p> <p>Error assigned was the order of the commission.</p>

<p>Railroads — Making up of trains — Rear car — Public Service Commission — Act of June 19,1911, Sec. 7, P. L. 1058. '</p> <p>A railroad company violates Section 7 of the Act of June 19, 1911, P. L. 1053, which forbids the operation of a train consisting of United States mail or express cars “without the rear end of the rear car being equipped with exit free from obstruction, platform of thirty inches in width, guard rails and steps,” if, in making up a train it places, as tbe rear car, a United States mail car constructed in strict conformity with the specifications issued by the postmaster general, but not having the rear end equipped in the manner specified by the Pennsylvania statute.</p> <p>The Act of 1911 exhibits no legislative intent to convert the Superior Court of Pennsylvania into a second legislative tribunal, or to place upon the shoulders of the judges of that court the duty of examining and weighing all the evidence and determining for themselves what is a reasonable manner of making up a train within the meaning of Section 7 of the act. This is a matter for the Public Service Commission.</p> <p>The Act of June 19, 1911, P. L. 1053, is a valid exercise of the police power of the Commonwealth, and violates no provision of either the Constitution of Pennsylvania or the Constitution of the United States.</p>

<p>Railroads — Grade crossings — Public Service Commission — Refusal of grade crossing — Review.</p> <p>An order of the Public Service Commission refusing to approve a grade crossing because such a “crossing is neither proper nor necessary for the service, accommodation, convenience or safety of the public,” will not be reversed by the Superior Court, where such, order is reasonable and is based upon competent evidence.</p> <p>The Public Service Commission has power of its own motion to inquire into the matter of requiring a separation of grade at a crossing. An order concerning a crossing, when appealed from, is prima facie reasonable, and the burden of proving it unreasonable rests upon the appellant.</p>

<p>Appeal, No. 44, March T., 1917, by defendants, from judgment of C. P. Lackawanna Co., Jan. T., 1914, No. 419, on verdict for plaintiff in case of John Yanosh v. E. W. Earley and Anthony Klimatis.</p> <p>Trespass to recover damages for the conversion of goods alleged 4o have been wrongfully seized for rent. Before Moser, J., specially presiding.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $1,049.23. Defendant appealed.</p> <p>Errors assigned, among others, were portions of the charge quoted in the opinion of the Superior Court.</p> <p>H. W. Mumford, with him E. L. Burns and 'A. G. Rutherford^ for appellee.</p>

<p>Criminal law — Conspiracy to cheat — Improper sentence.</p> <p>Where a person is convicted of conspiracy to cheat and defraud without the record showing that he had actually defrauded any one, or stolen any property, it is error for the court to incorporate in the sentence a direction that the defendant shall “restore the property stolen, if not already restored, or pay the owner the value thereof.”</p> <p>In such a case a sentence for ,a period of “not less than one year” in the penitentiary is not in conformity with the law. Under the Act of March 31, 1860, Sec. 128, P. L. 413, punishment for the offense is a fine of not more than $500, and either simple imprisonment, or imprisonment by separate or solitary confinement at labor not exceeding two years. Section 6 of the Act of June 19, 1911, P. L. 1055, provides that a maximum, not exceeding that fixed by the act under which the conviction is had, as well as a minimum shall be fixed by the sentence of the court.</p> <p>It is mere surplusage to incorporate in a sentence of imprisonment in the penitentiary the words “there to be kept, fed, clothed and treated as the law directs.”</p> <p>Where a prisoner has been convicted of conspiracy to cheat and defraud without the record showing that he had defrauded any one or stolen any property, and he is sentenced to confinement in prison for a period of “not less than one year,” “there to be kept, fed, clothed and treated as the law directs,” and is directed to “restore the property stolen” the Superior Court on original habeas corpus proceedings will direct that the record be remitted, and that the defendant be resentenced according to law, and that in such sentence due allowance shall be made by the court for the punishment already suffered.</p>

<p>Land law — Surveys—Conflicts—Duty of deputy surveyor — Warrant.</p> <p>A subsequent survey cannot affect a prior one regularly made and returned.</p> <p>A descriptive warrant, and payment of part of the purchase-money, gives an equitable interest in the land from its date, and when the patent issues the warrantee becomes possessed of the full legal title and it relates back to the inception' of his equitable title.</p> <p>If the deputy surveyor, after he has made the survey, but before making his return, discovers that he had taken in too much land, he should notify the warrantee giving him an opportunity to determine what lands should be excluded, and should indicate by his return the lands which were to pass under the survey.</p> <p>Where the official survey of a tract of land calls for an earlier survey as an ad joiner on the north, and the undisputed evidence discloses that the line of the senior, survey was the line actually run upon the ground by the deputy surveyor in locating the junior survey, and there are no marks on the ground to stop the junior survey from going to the southern line of the senior survey, the survey is to be carried to its calls for adjoiners, even though it overrun the distances returned, and a call for adjoiner will overrule the lines returned by courses and distances, where there are no lines upon the ground.</p>

<p>Road law — Municipal improvements — Paving—Original paving.</p> <p>Evidence that a municipality spread limestone ballast evenly over a roadway, converted into a hard surface by the passing traffic, and kept in repair by placing loose stones in the holes or ruts, is not such evidence of an intention by the municipality that the work should be an original paving, as will relieve an abutting owner from liability for future improvements.</p> <p>Describing the work as macadam by witnesses or - in reports, furnishes no information as to the manner of construction, and the materials entering into its construction. A witness cannot testify that certain methods of construction were emplos^ed to change ftp ordinary dirt street to a permanently improved highway. This calls for a conclusion. The “change” called for is expressive of the municipal intention, and such intention must be established by evidence apart from the work done.</p> <p>Work done on a roadway in 1874, will not be construed to have been adopted as a permanent -improvement by an ordinance passed in 1906, where there is nothing in the ordinance which indicates such intention. Such an ordinance is too remote from the time when the work was done to be any evidence of intention as applied to a particular street.</p> <p>The report of a borough engineer is not evidence of an intention to consider a macadamized pavement as a permanent improvement where it appears that the report was not approved by council, and that there was nothing in the report, even if it had b.een approved, .to show that council knew what kind of construction was embodied under the term “macadam,” and it also appears that the report was not made until twenty-three years after the work claimed as a permanent improvement had been done.</p> <p>On the trial of a scire facias sur municipal lien for paving, where the city offers the lien as prima facie evidence, and the lien recites .the acts and ordinances under which the work was done, the city is not required to offer the ordinances in evidence, if the affidavit of defense does not deny that such ordinances imposed the cost on the abutting owner, or otherwise challenge the authority of the city to make the improvement under the ordinance.</p>

<p>Appeal, No. 368, Oct. T., 1915, by plaintiff, from order of Public Service Commission, Complaint Docket 182, installing passenger service, in case of Philadelphia & Reading Railway Com-* pany v. Public Service Commission of the Commonwealth of Pennsylvania.</p> <p>Petition to compel the installation of passenger service on a branch railroad.</p> <p>Prom the record it appeared that the branch in queS' tion was a part of the Mine Hill and Schuylkill Haven Railroad leased to the Philadelphia & Reading Raihvay Company. The legislative history of the branch is set forth in the opinion of the Superior Court.</p> <p>The commission reported in part as follows:</p> <p>Newtown village, located on the Middle Creek Branch, has a population of about six or seven hundred people, and with the surrounding territory dependent upon it, in Reilly Township, No. 2, about 1,000 inhabitants. The village of Swatara, about a mile from Newtown, would 'be accommodated by passenger train service to New-town. The people in these villages and contiguous territory are without adequate railroad facilities. The evidence discloses a public need for the service demanded, and it likewise appears that under .the charter created by the incorporating acts the respondent is in duty bound to meet that need.”</p> <p>The following order was made:</p> <p>“Now, to wit, August 13,1915, It is ordered: That the Philadelphia & Reading Railway Company install, within thirty (30) days of the service of this order, morning and afternoon passenger train service between New-town, on the Middle Creek Branch, and Swatara Junction, on the Tremont Extension of the Mine Hill and Schuylkill Haven Railroad, with reasonable train connections at Swatara Junction with the passenger trains of said respondent company passing over said Tremont extension.”</p> <p>Error assigned was the order of the commission.</p>

<p>Railroads — Construction of siding — Eminent domain — Discretion of directors — Public Service Commission — Jurisdiction.</p> <p>There is nothing in the Public Service Act which authorizes the Public Service Commission to order a railroad company to exercise its power of eminent domain for the purpose of constructing a .siding from its tracks to the plant of a light, heat and power company. The discretionary power to exercise such power has always been lodged in the board of directors of the railroad company, and the act does not substitute the discretion of the Public Service Commission for that of the board of directors.</p> <p>Whether a proposed construction by a railroad conlpany be a siding or a branch, in either case when property must be condemned, such taking must be by a colórate act requiring as much formality as though it were a part of the main roadbed, — by a resolution of the board of directors.</p> <p>A public service corporation cannot be compelled by the commission to do an act which is ultra vires, and a common carrier cannot be compelled to extend its line beyond the reasonable demand of its charter obligation; nor within the demands of the charter obligation can it be compelled to open or extend lines or branches into unremunerative, unproductive or undeveloped territory, such as coal fields or nearby towns, unless such authority be expressly granted to the commission to compel such extension, and then due regard must be had to the financial resources of the company, its ability to procure capital to make the improvement, and the probabilities of the success of the improvements must be such as not to imperil the capital already launched in the enterprise.</p>

<p>Wills — Probate—Issue devisavit vel non — Undue influence.</p> <p>An issue devisavit vel non is a matter of right where the existence of a substantial dispute upon a material question of fact is demonstrated to the court by competent evidence which under the circumstances of the case, measures in probative force up to the requirements of the law;, but if the testimony is such that the judge would feel constrained to set aside a verdict against the will as contrary to the manifest weight of the evidence, determined according to relevant legal standards, it cannot be said that a ¡substantial dispute has arisen.</p> <p>An issue devisavit vel non will not be granted where the evidence shows that testatrix left a daughter, the contestant, twenty-five dollars and divided the remainder of her estate share and share alike among two other daughters and a son; that the allegation that testatrix made her will under the compulsion of and fear of her son, was not supported by any proof; that on the contrary the son plead with his mother to give an equal share of her estate to contestant; and that the contestant lived alone and frequently had trouble with her mother.</p>

<p>Road law — Vacation of road — Damages—Township roads — Liability of county — Constitutional law — Title of act — Acts of May 28,1918, P. L. 868, and June 27,1918, P. L. 688.</p> <p>Prior to the passage of the Act of May 28, 1913, P. L. 368, the owner of land abutting on a public highway had no franchise or vested right of any kind in the perpetual maintenance of the highway on a fixed location. He could not, therefore, recover damages if such highway were vacated.</p> <p>There is nothing in the Act of May 28,1913, P. L. 368, which allows damages to be imposed on a county where a township road is vacated at the instance of the township itself or some of the inhabitants therein; nor can such damages be. imposed upon the county by the provisions of the Act of June 27, 1913, P. L. 633, entitled “An Act to permit viewers to award damages for the vacation of streets, roads or highways to abutting owners where no land is actually taken.”</p> <p>If provisions in the body of the Act of June 27,1913, P. L. 633, could be fairly construed as to impose liability on the county for the vacation of a township road, then the act is clearly unconstitutional by reason of its defective, inadequate and misleading title.</p>